Sex discrimination: redundancy of part time employee was unfair as tainted by indirect sex discrimination

Published 4 April 2017

In this case, the EAT upheld findings of indirect sex discrimination and discrimination on the basis of part time working against an employer who had not offered alternative employment on a part time basis in a redundancy situation.

The facts

Fidessa Plc employed Ms Lancaster as an engineer in the Connectivity Operations team. She had one colleague in the team, Ms Street, and a line manager, Ms Nosal, who reported to Mr Tumber.

Ms Lancaster returned from maternity leave, and (at her request) moved to part time working – four days a week, from 9am to 5pm, when she had to leave to pick up her daughter from nursery.

Ms Lancaster was in the early stages of pregnancy and asked Ms Nosal for time off for a medical appointment. Ms Nosal (who was the only person Ms Lancaster had told she was pregnant) had to clear the time off with Mr Tumber. As he refused the request, she told Mr Tumber that Ms Lancaster was pregnant, and he responded by saying "Oh f*ck, she's pregnant". Ms Nosal only told Ms Lancaster about this remark during subsequent redundancy consultation.

An issue arose in relation to Ms Lancaster's working arrangements. It became necessary to perform "deletions" after 5pm. Ms Lancaster agreed that this would sometimes require her to stay after 5pm, but Ms Nosal agreed that she could do preparatory work before 5pm and complete the deletions from home. When Ms Nosal was on leave, Mr Tumber did not let Ms Lancaster do this, and she had to work after 5pm more often.

Mr Tumber proposed a reorganisation of the Connectivity department, which included reducing the number in Ms Lancaster's team from three to two. The two roles would combine the roles of Ms Nosal and Ms Street, and an engineer, who would do a role similar to Ms Lancaster's role, but with an emphasis on deletions, some of which would be conducted from the office after 5pm. The three members of the team were invited to apply for the manager role. Ms Street was successful. Ms Lancaster did not apply for the engineer role, expressing concerns about the need to work after 5pm as well as a lack of variety and opportunity for progression. There was no other suitable vacancy, and she was dismissed by reason of redundancy.

Ms Lancaster brought claims for unfair dismissal, indirect and direct sex discrimination, harassment and part time worker detriment.

The tribunal upheld all her claims. It made the following findings:

• Mr Tumber's remark ("oh f*ck, she's pregnant") amounted to a detriment when Ms Lancaster was told of it during the redundancy process, and this was direct discrimination and harassment related to sex;
• Reneging on the agreement that Ms Lancaster could leave work at 5pm amounted to less favourable treatment of which her part time status was the predominant and effective cause;
• The restructuring exercise was not a sham put up by Mr Tumber to get rid of Ms Lancaster and Ms Nosal, and the process was reasonably open to a reasonable employer in the circumstances, so was not unfair for this reason.
• However, Ms Lancaster had suffered indirect sex discrimination: Fidessa had applied PCPs to the new engineer role – i.e. that the postholder must perform deletions after 5pm, and this could not ordinarily be performed from home. That put women, and Ms Lancaster, at a disadvantage, and there had been no proper consideration of alternative ways of working: Fidessa had not therefore shown that the PCP was a proportionate means of achieving a legitimate aim.
• The dismissal was therefore tainted by direct and indirect sex discrimination, and was therefore unfair.

Fidessa appealed.

The EAT upheld the appeal in relation to Mr Tumber's remark on a technicality: the tribunal had not made specific findings about the actual impact on Ms Lancaster when she heard about the remark, as it would have to do for a finding of harassment or direct sex discrimination. This issue was remitted back to the same tribunal, though the EAT did make its views clear on this, saying that the impact "might have been so obvious so as to speak for itself".

The EAT did not uphold the other grounds of appeal.

What does this mean for employers?

A requirement to undertake work after 5pm and to do so at the workplace rather than at home is indirectly discriminatory unless it can be justified. This means that failing to design an alternative role to take account of existing flexibility may amount to indirect discrimination, which may affect the fairness of the dismissal, even if the employee does not apply for the role. Employers who are considering redundancy procedures involving women who work part time should therefore consider whether new roles that have been created can incorporate existing flexibility, and (if not) have evidence ready to justify this as a proportionate means of achieving a legitimate aim.  

Fidessa Plc v Lancaster