Part-time employees redundancy amounted to unfair dismissal and indirect sex discrimination
In Fidessa Plc v Lancaster, the Employment Appeal Tribunal (EAT) upheld an Employment Tribunal’s decision that an employee who returned from maternity leave on a part-time basis and was then made redundant, had been unfairly dismissed and subjected to indirect sex discrimination and less favourable treatment because of her part-time worker status.
Ms Lancaster worked as a software engineer in Fidessa’s Connectivity Operations team. After a period of maternity leave, she was permitted to work for four days per week, leaving at 5pm to collect her child from nursery, although it was agreed that there would be some flexibility around those times. Shortly after Ms Lancaster had informed her line manager, Ms Nosal, that she was pregnant again, an issue arose over an aspect of her role which could only be completed after 5pm. Although Ms Nosal agreed that Ms Lancaster could complete this work remotely from home, a more senior manager, Mr Tumber, refused to give her this flexibility when Ms Nosal was on leave.
Mr Tumber then implemented a reorganisation which involved reducing the number of jobs in the Connectivity Operations team from three to two, a manager and an engineer.
Ms Lancaster applied for the manager role but was unsuccessful. She did not apply for the engineer role, largely because it would have required her to work in the office beyond 5pm. Since there were no other suitable vacancies, Ms Lancaster was made redundant.
An Employment Tribunal upheld her claims for unfair dismissal, indirect sex discrimination and detriment related to part-time working. The EAT rejected Fidessa’s appeal against all three findings.
It agreed that reneging on the agreement that Ms Lancaster could normally leave work at 5pm amounted to less favourable treatment caused predominantly by her part-time status. The redundancy process was not considered to be a sham to get rid of Ms Lancaster. However, working from the office after 5pm was a requirement of the new engineer role. This put women, and Ms Lancaster, at a disadvantage because of their childcare responsibilities. Fidessa had not properly considered alternative ways of working to take account of Ms Lancaster’s existing flexibility, even though she had previously been allowed to complete her work from home. The EAT concluded that her dismissal was tainted by indirect discrimination and was therefore unfair.
This case highlights the importance of considering carefully the practical and legal implications of requirements for roles created in a reorganisation. For example, requiring work to be undertaken outside normal hours or only in the office is more likely to disadvantage women and may therefore lead to sex discrimination claims. Other groups with protected characteristics may also be affected. Employers should also note that Ms Lancaster succeeded in her claims even though she did not actually apply for the engineer role.