Dismissal of part-time employee unfair – tainted by sex discrimination

12.04.2017

In a case which serves as a cautionary tale to employers (Fidessa Plc -v- Lancaster), the EAT has largely upheld a decision of the Tribunal, that a part-time worker who was dismissed for redundancy had been unfairly dismissed, subjected to indirect sex discrimination, and part-time worker detriment. Further findings that she had been subjected to harassment and direct discrimination in addition could not stand as the Tribunal’s reasons were insufficient, consequently the EAT remitted this aspect of the case to the original Tribunal ‘with some reluctance’.
Ms Lancaster was employed by Fidessa Plc as an engineer. She returned to work on a part-time basis (working 4 days per week, and needing to leave by 5pm in order to collect her daughter from nursery) after her maternity leave ended in August 2013, and initially took a period of annual leave. In August 2014 an issue arose concerning her working arrangements; certain tasks needed to be completed after 5pm and while previously she had been allowed to carry out this work remotely from home, her new manager did not permit this and she was frequently required to stay until after 5pm. A redundancy process was subsequently commenced in October 2014. Ms Lancaster did not apply for what the company considered to be a suitable alternative role, as it was more heavily focused on those particular tasks which would require her to stay until after 5pm.
The EAT upheld the Tribunal’s decision in most respects. Subsequently requiring Ms Lancaster to finish work later was inconsistent with the agreement that had been reached, and was less favourable treatment of her as a part-time worker, arising because of her part-time status. Fidessa had sought to argue that Ms Lancaster’s period of annual leave meant that she had been absent in total for more than a year (in which case she could not point to her previous terms and conditions as a comparator) – but the EAT rejected this argument on the basis that it would give rise to an artificial requirement for women to return to work for one day before taking accrued annual leave, and may therefore discourage them from taking the leave. Further, it would be wrong to suggest that an employment relationship is somehow ‘on hold’ while an employee is on annual leave.
As regards the alternative position available during the redundancy procedure, the requirement to undertake the work after 5pm and to do so at the office was a two-fold PCP which created a disadvantage more likely to be suffered by women, given that they predominantly have a requirement to exercise childcare functions and collect children from nursery. Ms Lancaster suffered this disadvantage and it did not matter that she also had broader concerns (about a lack of variety and opportunity for progression) about the new role. In this situation, as the role was rendered unsuitable by an indirectly discriminatory PCP, it was open to the Tribunal to find that this made the dismissal unfair.
Ms Lancaster had also claimed direct discrimination and harassment in relation to a comment made by her manager, upon learning that she was pregnant (“Oh f***, she’s pregnant”). Ms Lancaster was not present when this comment was made but it was reported to her by another team member during the redundancy exercise. The Tribunal had not expressly set out the effect of the comment on Ms Lancaster, and although the EAT considered it “unlikely” that such a remark would not amount to a detriment for the purposes of direct discrimination or create an intimidating, hostile, degrading humiliating or offensive environment for the purposes of harassment, since the Tribunal had not specifically stated this in its reasons the appeal succeeded on this point and the case was remitted to the original Tribunal in this regard.

Justin Costley

Author