“How should I treat part-time workers in redundancy situations?”
It’s a question which arises again and again. If you are reducing the number of posts, and so require people in the remaining posts to work full time, could this lead to vulnerability in a tribunal claim?
The simple answer is yes, as the EAT found in the recent decision of Fidessa v Lancaster.
The judges held that a requirement to be at the office after 5 pm was a provision, criterion or practice (PCP) which potentially puts women (who do the majority of childcare and pick-ups) at a disadvantage.
Ms Lancaster had returned to work part time after maternity leave and agreed with her employer that she would leave work at 5 pm to pick up her child from nursery. Although part of her job involved work that could only be done after 5 pm, initially she had the flexibility to complete work at home later, if required.
The situation subsequently changed and she was required to stay later in the office. The employer then decided to restructure the department and cut the number of roles from three to two. Both the new roles were full time.
Ms Lancaster applied for one role and was unsuccessful. She declined to apply for the other role as it involved staying in the office until after 5 pm, and because she felt the role did not offer any career progression.
She was therefore made redundant and submitted a range of claims, including direct and indirect sex discrimination. The employment tribunal found in her favour on all aspects and the employer appealed to the EAT.
Her part-time worker claim succeeded on the basis that the employer had reneged on the agreement to allow her to leave at 5 pm. This constituted less favourable treatment.
Fidessa had argued that Ms Lancaster could not use her previous full-time working arrangement (pre-maternity leave) as a comparator, as she was absent for more than 12 months in between working arrangements.
However, as her maternity leave had been slightly less than 12 months and it was annual leave which took her over the threshold, the EAT took the pragmatic decision that the time spent on annual leave should not adversely affect her and she could still bring her claim.
The indirect sex discrimination claim was upheld on the basis that, had she applied for the new role, Ms Lancaster would suffer disadvantage by a two-fold PCP: that of having to undertake work after 5 pm and of having to do so at the workplace rather than at home.
It was found that this was a disadvantage more likely to be suffered by women, who are most likely to undertake childcare and collect children from nursery or school at the end of the working day.
What steps should employers take?
In terms of key guidance to take from this case, it always makes sense for employers to consider existing flexible working arrangements when designing alternative roles.
And if a new role really cannot accommodate flexible working, there needs to be strong objective justification to back this up and limit the risk of successful claims.