Sex Discrimination – Indirect Discrimination
The Respondent provides support services to adults with disabilities who require assistance on a 24 hour a day, 7 days a week basis. The Claimant was employed by the Respondent as a Support Worker, under a contract that guaranteed her a minimum number of working hours. After the Claimant returned to work following a period of maternity leave, the Respondent had agreed that she could be allocated hours of work that took into account her childcaring responsibilities (‘considerate hours’). After the Respondent became aware that the Claimant had been working elsewhere when it had understood she was unable to work due to her parental responsibilities, the considerate hours arrangement was withdrawn and, from 12 December 2018 until early in January 2019, the Respondent allocated hours to the Claimant as required by the needs of the service and without regard to her childcare commitments. The Claimant was unable to work all the hours offered during this period and worked fewer hours than those to which she would otherwise have been entitled under her guaranteed hours contract. The Respondent spoke to the Claimant about this, suggesting that, if she could not work the guaranteed minimum hours, she might need to go on to a zero-hour contract. Ultimately the parties were able to reach an accommodation that enabled the Claimant to continue on the guaranteed minimum hours contract, working considerate hours once again. The Claimant lodged a claim with the Employment Tribunal, however, in respect of the period for which this accommodation had been withdrawn; she claimed that the Respondent had applied a provision, criterion or practice (‘PCP’) to her, requiring her to work whatever hours were allocated to her, and that this amounted to unlawful indirect sex discrimination.
The Respondent resisted the claim. Whilst accepting that it applied a general policy to its staff that required them to work, ’24/7′ to meet the needs of the service, it contended that it sought to do so in consultation with its employees. It did not, however, deny that it had applied a PCP to the Claimant as she had alleged, albeit that it contested that this had any discriminatory impact relating to sex and contended that, in any event, any such PCP was objectively justified. At an earlier case management hearing, the ET had identified the issues to be determined in respect of this claim as being: (i) whether the PCP put female employees at a particular disadvantage? (ii) whether it had put the Claimant at such a disadvantage? and (iii) whether it was a proportionate means of achieving a legitimate aim?
At the full merits hearing, however, the ET dismissed the Claimant’s claim on the basis that the PCP alleged had not been applied to her. It considered that the evidence demonstrated that the Respondent sought to consult with its employees in the application of its general ’24/7′ policy and it had not subjected the Claimant to any sanction when she was unable to work the hours offered to her during the period in question; in the circumstances, she had not been subjected to a requirement to work the hours allocated to her (which was how she had defined the PCP in her claim). The Claimant applied to the ET to reconsider this decision on the basis that the application to her of the PCP had not been put in issue. The ET refused this application. The Claimant appealed.
Held: allowing the appeal
The application of the PCP (as defined in the Claimant’s claim) had not been put in issue by the Respondent and the ET had been wrong to determine the case against the Claimant on this question without giving her an opportunity to respond; it had thereby denied the Claimant a fair hearing.
In any event, on the ET’s findings of fact it was clear that it had accepted that the PCP had been applied to her for the period in issue: in order to work the guaranteed minimum hours to which she was entitled under her contract, she had been required to work whatever hours were allocated by the Respondent, as opposed to hours that took into account her childcare responsibilities. The ET had erred in looking at the matter retrospectively (as to whether the Claimant had been subjected to any later sanction for not working all the hours offered by the Respondent) but, in any event, it was apparent that the Claimant had lost out by not being able to comply with the requirement to work the hours allocated. Moreover, as the ET had also found, when the Claimant was unable to meet that requirement, the Respondent had suggested that she might move to a zero-hours contract, thus losing her entitlement to guaranteed minimum hours.
On the basis of the facts found by the ET, the only permissible conclusion was that a PCP had been applied to the Claimant from 12 December 2018 until early January 2019 as alleged in the ET1. The matter would need to be remitted to a differently constituted ET for determination of the remaining issues relating to disadvantage and objective justification.
Eady J
[2021] UKEAT 0195 – 20 – 1305
Bailii
Equality Act 2010 19
England and Wales
Updated: 07 July 2021; Ref: scu.663585
