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  • Overview

    The Employment Appeal Tribunal (EAT) has given a verdict which highlights the importance of allowing flexible working hours for employees.

    Employers should be particularly aware of the rights that employees have under the Part Time Workers (PTW) Regulations, in order to avoid falling foul of the regulations. After all, no employer wants to be staring down the barrel of an unfair dismissal claim.

    So what was this case all about? In short, Ms Lancaster was on maternity leave when she requested that she work flexible hours upon her return to her job. The main issue was that she would need to leave at 5pm in order to collect her daughter from nursery.

    Once Ms Lancaster returned to work however, there were some aspects of work which had to be completed after 5pm. Whilst her, seemingly reasonable, line manager allowed her to carry out preparatory work before 5pm and then complete the remaining work at home, during the line manager’s absence Ms Lancaster’s senior manager refused to allow her the same flexibility.

    A reorganisation of the department then took place, however the new vacancy open to Ms Lancaster required work to be done after 5pm, and therefore obviously it did not suit Ms Lancaster’s requirements. As there was no other suitable vacancy, Mr Lancaster was made redundant. She brought claims against her employer for unfair dismissal, indirect and direct sex discrimination, harassment and part-time worker detriment.

    Part time worker detriment

    A part-time worker has the right not to be treated less favourably than a comparable full-time worker; if the treatment is because of the fact that the employee works part-time and there is no objective justification for the treatment, then an employment tribunal can find that there has been unlawful discrimination because of the employee’s part-time worker status.

    This protection applies to workers who switch to part-time work after a period of absence, however only if the absence is less than a period of 12 months. In this case, Ms Lancaster had returned to work from maternity leave after just under 12 months. Although she immediately took annual leave on her return. Such a situation is not uncommon.

    The EAT decided that Ms Lancaster had been treated unfairly and said that when considering if a period of absence is less than 12 months for the purposes of part-time worker discrimination protection, the period of annual leave taken immediately upon return is not to be taken into account. The PTW Regulations therefore applied and she has been subjected to part-time worker discrimination.

    Indirect sex discrimination

    The EAT found that there was indirect sex discrimination in Ms Lancaster’s case, as the requirement in the new role for her to work past 5pm put her at a disadvantage. This was a disadvantage which is more likely to be suffered by women, because as a group they are more likely to conduct childcare functions, such as picking up their child from nursery, then male employees.

    Unfair Dismissal

    The EAT found that in a situation where a suitable role was only unsuitable because of an indirectly discriminatory aspect of the work (in this case the requirement to work past 5pm) then this made the dismissal unfair.

    Points to Consider

    Employer’s should remember that annual leave is not to be taken into account when considering whether an employee’s absence has been for less than 12 months for the purposes of the establishing when the PTW Regulations provide protection for part-timers.

    Requiring an employee to work beyond an agreed time creates a disadvantage for an employee which would likely be suffered more by women, as they are generally the group that carries out childcare functions. This does, therefore, constitute indirect sex discrimination.

    An employer must also be prepared to design alternative roles in order to take account of an employee’s existing flexibility.

    Employers should be extremely careful when dismissing employees on the grounds of redundancy in such a situation akin to this case and it is recommended that legal assistance is sought where possible to avoid any exposure to claims.

    http://www.bailii.org/uk/cases/UKEAT/2017/0093_16_1601.html

    If you would like to further discuss any of the informatin above, please email alexander.millward@ts-p.co.uk.

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