Tribunal Tale – Indirect sex discrimination

Alice Thompson, the Claimant, worked at a London based estate agency as a sales manager. After she announced her pregnancy there were a number of incidents which in the eyes of the Claimant amounted to a pattern of hostility.  She was absent on maternity leave from October 2018 to October 2019. On her return to work, she made an unsuccessful application for flexible working, and lodged a grievance about her treatment when pregnant; on learning both had been rejected, she resigned. She claimed pregnancy and maternity discrimination, harassment related to sex, indirect sex discrimination in respect of the flexible working request, unfair dismissal, and unlawful deduction of commission payments from wages.

The Claimant was only successful in relation to the indirect sex discrimination part of her claim. Direct sex discrimination is when you are treated differently based on a protected characteristic (such as race, age or gender). Indirect discrimination is different. This occurs when an apparently neutral policy, practice or rule is put in place in a company but has the effect of negatively impacting those with a protected characteristic. A claimant who brings a case of indirect discrimination to a tribunal must detail what the policy is, and the discriminatory effect it has on them. An employer can successfully defend this claim if the discrimination was objectively justified. In order to successfully demonstrate this, it must be shown that the treatment is a proportionate means of achieving a legitimate aim.

In this case the provision of neutral effect was the requirement that a sales manager work full-time, 9-6, Monday to Friday. The Claimant had her request to work 4 days a week from 9-5 in order to pick up her daughter from a nursery which closed at 6pm rejected by the Respondent. The tribunal accepted that this discriminated against the Claimant as a mother as a recent survey has shown that 64% of mothers, compared to 36% of fathers, are the primary carer for their children.

The tribunal considered the potential justifications the employer had for rejecting this request. The legitimate aim was the continuing success of the business. The rejection letter emphasised the importance of consistency and continuity in client relationships for successful sales and that for those reasons the reduction in hours would not be possible.

Were the reasons for refusal a proportionate means of achieving this aim? No. The Respondent claimed it would be too expensive and it would not be possible to reorganise the work among staff. However, the tribunal was not convinced by this argument. The maternity cover for the Claimant was able to stay on as a negotiator and could step up as sales manager for the one day a week the Claimant would not be working, and the business would also save money by not having to pay the Claimant for that day as well as the additional hour that she normally would have worked on her other days. The Claimant gave evidence to show that the team was small and everyone was aware of each other’s workload and could step in when required. Therefore the Claimant was successful in her claim, and was awarded nearly £185,000.

It is important to note that the tribunal specifically mentioned that if the employer was worried about the impact of the changes requested by the Claimant, then the Claimant’s request could be trialled on a temporary basis. Employers should be open minded when it comes to flexible working requests and not dismiss them on a pre-conceived notion. It is also important to be cognisant of how seemingly neutral decisions can be tantamount to discrimination.

If you have any questions on any of the issues mentioned in the above article, please contact Natalia Milne.

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