1. Background and context

A report from the Institute of Fiscal Studies in 2006 said that

"gender differences in the formal labour market stem from the division of parental duties between mothers and fathers in the home, with mothers being primarily responsible for the care of children’ and

"the loss of employment experience and training after having children may leave women in a permanently weaker labour market position relative to men".

The above is evidenced by the difference in pay, which persists long after children have left home. Women’s average hourly wage prior to children is 91% of the male average but for full-timers it is 94%. The average wage of women with children is 67% that of men’s (for full-timers it is 74%). When children have grown up women’s average wage is still only 72% of men’s. ²

The average wage growth over 2 years for women before having children was 11% but fell to 8% for women with newborn children. While it recovered to 9% for those with pre-school children, it fell to less than 5% when their children entered school.

78% of all part-time workers are women.³ Britain has the second highest proportion of part-time workers in the EU. ⁴ Two-Fifths of women in employment in Britain work part-time compared with 11% of men. The main trigger for women working part-time is the arrival of the second child. Both male and female part-time workers receive 40% less training than their full-time counterparts. ⁵ The skills gap between part-time and full-time workers is growing. ⁶ Women working part-time earn on average 40% less per hour than working full-time a percentage that has not changed in 30 years. ⁷ The longer a person is in part-time work, the lower their wages are likely to be, even if they return to full-time work. ⁸

A substantial number of women choose to return to work part-time after maternity leave, though many low paid workers cannot afford to reduce their hours. Despite legal rights, in practice many women are forced into lower status work in order to get the hours they need.

2. Statutory maternity, paternity and parental rights (in brief).

2.1 52 weeks maternity leave (consisting of 26 weeks Ordinary maternity leave (OML) and 26 weeks Additional maternity leave (AML), 39 weeks paid (for those employees who qualify), subject to compliance with notice provisions.

2.2 OML for 26 weeks during which contractual rights continue, except pay.

2.3 AML for 26 weeks during which only limited rights continue (notice, redundancy pay, trust and confidence, statutory holiday); but see Land Brandenburg v Sass⁹ and Equal Opportunities Commission v Secretary of State for Trade and Industry. ¹⁰

2.4 Entitlement to pension during paid period of leave.

2.5 Entitlement to bonus for period outside maternity leave and for compulsory maternity leave period.

2.6 KIT days enabling employees to work for up to 10 days during maternity/adoption leave without losing statutory payments. Such work must be agreed between the parties. An employee is protected from any detriment or dismissal for undertaking, considering undertaking or not undertaking such work.

2.7 An employer may also make contact with an employee while s/he is on leave.

2.8 Right to return to exactly the same job after OML

2.9 Right to return to the same job after AML unless it is not reasonably practicable in which case the employee should be offered a suitable alternative job; see Blundell v The Governing Body of St Andrew’s Catholic Primary School. ¹¹

2.10 Right to suitable alternative work if made redundant during OML, AML or adoption leave. This is in preference to other workers.

2.11 Similar rights for adopters except 26 weeks’ qualifying service and 39 weeks at basic statutory adoption pay.

2.12 2 weeks paternity leave.

2.13 13 weeks unpaid parental leave for each parent for each child under 5 (18 weeks if the child is disabled).

2.14 Reasonable unpaid time off for Dependants to deal with emergencies.

2.15 Health and safety provisions, including time off for ante natal care, an obligation on the employer to carry out a risk assessment and ensure there are not risks to the mother or baby. Failure to do this may be discrimination. ¹²

3. The SDA and EPA

Scope of SDA and EqPA

3.1 The SDA generally covers non-contractual terms (such as recruitment, training, promotion, dismissal, detriment) and there is no need for an actual comparator. The EqPA covers pay and contractual terms and usually there is a requirement for an actual male comparator. ¹³ The two Acts are intended to cover different situations. However, the Court of Appeal has said that they should be construed and applied as a harmonious whole.¹⁴ They should also be interpreted consistently with EU law and the Human Rights Act.

The SDA 1975 provides protection, in defined circumstances, against

• direct discrimination on the ground of pregnancy and maternity leave (SDA s3A); the exceptions are set out in s6A;

• direct and indirect discrimination on the ground of sex (SDA s1),

• direct and indirect discrimination on ground of marital status and civil partnership (SDA s3),

• harassment (SDA s4A);

• victimisation (SDA s4).

EC law does not make the distinction between contractual and non-contractual terms. Note that the ETD now covers pay so that, arguably, this removes the need for a comparator in all equal pay cases.

3.2 In Alabaster v Barclays Bank plc (No 2)¹⁵ the CA held that in order to give effect to EC law the requirement for an actual comparator, in pay cases relating to pregnancy/maternity leave, should be disapplied.

3.3 The category of workers protected from discrimination is much wider than under the Employment Rights Act (ERA) 1996 and includes the self-employed, contract workers, partners, agency workers etc. Job applicants are protected and there is no qualifying service.

3.4 An employer is liable for discrimination carried out by a worker in the course of his/her employment (SDA s41 and 42). Recently the Court of Appeal upheld an award of £25,000 for injury to feelings against a company director on the basis that not only had she discriminated against a pregnant employee but had encouraged other employees to discriminate.¹⁶

3.5 Knowledge of Pregnancy

Clearly, there will be no discrimination on grounds of pregnancy if the employer was not aware of the woman’s pregnancy. This will be a question of fact. For example, the provision of a sick note that refers to the woman’s pregnancy (even in latin) should be sufficient (see Day v Pickles ¹⁷ ). In Ramdoolar v Bycity Ltd ¹⁸ the EAT said that an employer was not obliged to undertake enquiries about whether a woman was pregnant as this itself may be regarded as a detriment. However the EAT also added one qualification saying:

‘It is conceivable that circumstances will arise in which an employer, detecting the symptoms of pregnancy and fearing the consequences, if the employee is in fact pregnant, but neither knowing nor believing that she is, simply suspecting that she might, dismisses her before his suspicion can be proved right. In such circumstances it may well be that a dismissal would be automatically unfair’.

Section 3A SDA

3.6 Pregnancy/maternity leave discrimination is defined separately under s3A. Section 3A(1) SDA provides that ‘a person discriminates against a woman if

1. at a time in a protected period [ie from beginning of pregnancy until end of maternity leave], and on the ground of the woman’s pregnancy, the person treats her less favourably than he would treat her had she not become pregnant; or

2. on the ground that the woman is exercising or seeking to exercise, or has exercised or sought to exercise, a statutory right to maternity leave, the person treats her less favourably than he would treat her if she were neither exercising nor seeking to exercise, and had neither exercised nor sought to exercise, such a right.’
   
   S3A(3) provides that where a person’s treatment of a woman is on grounds of illness suffered by the woman as a consequence of a pregnancy of hers, that treatment is to be taken to be on the ground of the pregnancy.

Less favourable treatment of a woman on the ground of her pregnancy, pregnancy related sickness or maternity leave will automatically be unlawful direct sex discrimination without the need to compare her with a man, except that a woman on maternity leave is not entitled to her pay; this is often referred to as automatic sex discrimination. ¹⁹ Protection from automatic sex discrimination lasts from the beginning of pregnancy until the end of maternity leave (SDA S3A).

But the protection does not apply to non employees after the period of compulsory maternity leave. ²⁰

3.7 Exceptions relating to terms and conditions during maternity leave

During OML: it is not unlawful to deprive a woman on OML of any benefit from the terms and conditions of her employment relating to remuneration. She is not entitled to pay – except SMP. Her other terms and conditions are maintained.

During AML: it is not unlawful to deprive a woman on AML of any benefit from the terms and conditions of employment except:

1. maternity-related remuneration, eg SMP, pension contributions during paid leave,

2. the implied term of trust and confidence,

3. the benefit of terms and conditions in respect of notice, redundancy compensation, disciplinary or grievance procedures, membership of a pension scheme.

BUT she is entitled to benefits relating to periods outside her maternity leave, even if she receives them while on leave and maternity-related remuneration that is increase-related. Thus, if there is a pay increase after the calculation of her SMP she must receive this.

Equal Pay Act provisions relating to pay during maternity leave

The EPA at sections 1(2)(d-f) and (5A-B) gives effect to the judgments in Alabaster and current case law on bonuses. These provide that:

• Where an employee receives a pay increase after the qualifying period and before the end of her maternity leave and her maternity pay is calculated by reference to a particular period (usually the qualifying period), the pay increase must be reflected in her maternity pay. This applies to contractual and statutory maternity pay, but only if her maternity pay is less than her full pay would have been.

• Any pay or bonus relating to periods outside maternity leave must be paid as normal. If due during maternity leave, it must be paid then. In Hoyland v ASDA Stores Ltd²¹ the EAT held that a worker who takes maternity leave during a bonus year must be paid a contractual bonus in respect of the periods when she is at work and the two weeks of compulsory maternity leave but a proportionate reduction to reflect absence on maternity leave is permitted.

• An employee on compulsory maternity leave is entitled to any bonus payable in respect of this period.

• Any pay rise which would have been awarded to a woman on maternity leave must be reflected in her salary on her return.

8. Summary of principles

1. Discrimination is defined as meaning either that different rules are applied to men and women in comparable situations, or that the same rule is applied to men and women who are in different situations. … As applied to pregnancy and maternity cases, the second limb of this definition means that treating pregnant workers or women on maternity leave in the same way as other employees during the ‘protected period’ (that is the start of pregnancy through to the end of maternity leave), in circumstances in which they are disadvantaged because of their pregnancy or maternity, is applying the same treatment to different situations and is therefore discrimination. In this way, the law aims to ensure substantive equality for working women, who would otherwise be disadvantaged by their pregnancy’.²²

2. Less favourable treatment of a worker on the ground of pregnancy or pregnancy related sickness is automatically sex discrimination. If the reason for the treatment is pregnancy then the detriment resulting, whatever it is, is unlawful sex discrimination even though other employees in the same circumstances are or would be treated in the same way. The same rule is being applied to different situations and is therefore discriminatory. This does not apply to pay. ²³

3. A woman does not need to compare her treatment to that of a male colleague, because there can be no comparison between a pregnant woman or woman on maternity leave and a man. The comparison is with how the employer would treat the woman had she not become pregnant. This is similar to the ‘but for’ test.

4. In deciding whether less favourable treatment is on grounds of pregnancy, it is not permissible to say that the treatment is on grounds of absence, rather than on grounds of pregnancy, and that other absent employees are treated equally so that there is no sex discrimination.’ When deciding the question of causation, namely whether her dismissal was on the grounds of pregnancy, the basic question is what is the ‘effective and predominant cause’ or the ‘real and efficient cause’ of the act complained of.²⁴ Pregnancy and/or maternity leave does not have to be the only reason for the treatment but to be unlawful it must be a substantial or effective reason.²⁵

5. Employees are protected from discrimination on the ground of pregnancy from the beginning of their pregnancy but only until the end of statutory maternity leave or their return to work, whichever is the sooner. There is no defence to direct discrimination. Thus, even if an employer suffers a substantial financial disadvantage, this does not justify discrimination.

6. Less favourable treatment on the ground of an employee’s maternity leave is also sex discrimination. Maternity leave is the period of leave that only an employee is entitled to under the Employment Rights Act. Again, a male comparator is not required. After maternity leave, it is possible to argue that there has been less favourable treatment on the ground that the woman has exercised a right to maternity leave. Any less favourable treatment, whenever it occurs, on the grounds that the woman has been on maternity leave will be discrimination.
   

7. Under s3A it is not discrimination to deprive a woman on statutory maternity leave of her normal pay (“remuneration”) or to allow her to benefit only from the terms and conditions to which she is entitled under the Employment Rights Act (Section 6A).

3.9 Examples of unlawful discrimination under the SDA

1. Dismissing or disciplining a woman who is absent with a pregnancy related illness; ²⁶

2. Failing to promote a woman because she is pregnant or on leave; ²⁷

3. Abbreviating a woman’s probationary period on grounds of pregnancy, or by reason of her absence on maternity leave;²⁸

4. Demoting or dismissing an employee because she is pregnant, is absent with pregnancy related illness or on maternity leave. ²⁹ This would include dismissal of a woman following her inability to attend a discipinary hearing because her doctor considered she was emotionally unfit to attend and was likely to remain so until after her pregnancy was over; ³⁰

5. Denying a woman training on grounds of her pregnancy or impending maternity leave;

6. Giving a woman inferior or different work because she is pregnant, is about to go on or has just returned from maternity leave. NB there may be a conflict with the rights under the ERA and MPLR Regs 1999. See Blundell.

7. Dismissing a woman on grounds of her pregnancy. This would include choosing her for redundancy and/or failing to offer her alternative work because she is pregnant or about to go on maternity leave.

8. Treating an employee on statutory maternity leave less favourably in relation to her working conditions on the ground that she is exercising or seeking to exercise or has exercised or sought to exercise a statutory right to maternity leave. Thus it will be discrimination:

• to fail to consult a woman on maternity leave about a redundancy situation or a reorganisation;

• not to give a woman on maternity leave an appraisal;

• to dismiss a woman on grounds of her absence on maternity leave;
  

9. An employee who is absent with pregnancy related sickness is entitled to be paid the same as any other employee with comparable sickness absence. She is not entitled to full pay during the whole period of her absence where other employees would not be entitled to such pay.³¹

3.10 EC law

3.10.1 The key principles, which still apply, are set out in the ECJ and HL cases of Webb v EMO Tele Danmark, Dekker, Hertz, Brown v Rentokil, Busch, Sass and Herrero (see below). The principles apply to all areas of prohibited discrimination, ie recruitment, training, transfer, promotion, detriment and dismissal.

In Webb the ECJ held:

‘there can be no question of comparing the situation of a woman who finds herself incapable, by reason of pregnancy discovered very shortly after the conclusion of the employment contract, of performing the task for which she was recruited with that of a man similarly incapable for medical or other reasons’. This would apply in all pregnancy cases, whether concerning recruitment, promotion, detriment or dismissal;

‘dismissal of a pregnant woman recruited for an indefinite period cannot be justified because she is unable to work for a temporary period because of her pregnancy; note that this has subsequently been applied to all fixed term contracts even if the woman is unavailable for the whole contract;

‘the protection afforded by Community law to a woman during pregnancy and after childbirth cannot be dependent on whether her presence at work during maternity is essential to the proper functioning of the undertaking in which she is employed’.

Discrimination cannot be justified by the financial loss which an employer who appointed a pregnant woman would suffer for the duration of her pregnancy. ³²

Any less favourable treatment of a woman because she is pregnant or because of the consequences of pregnancy is discrimination.

In Tele Danmark, ³³ where the fixed term contract of a pregnant woman was terminated when she told her employer that she was pregnant, the ECJ held that:

 

Dismissal will be sex discrimination if it is on the ground of pregnancy, notwithstanding that the woman was recruited for a fixed period, failed to inform the employer that she was pregnant even though she was aware of this when she was employed, and because of her pregnancy was unable to work during a substantial part of the term of that contact; it makes no difference if the contract was indefinite or for a fixed term;

There is no exception to the prohibition of dismissing pregnant workers, save in exceptional cases not connected with their condition

In Dekker³⁴ the European Court of Justice (ECJ) held that it was a breach of the Equal Treatment Directive for an employer to refuse to appoint a suitable female applicant because of the possible adverse consequences of her pregnancy, which includes her inability to work on health and safety grounds³⁵ The ECJ said:

as employment can only be refused to women because of pregnancy, such a refusal is direct discrimination on grounds of sex.

In Hertz³⁶ the ECJ held that:

The dismissal of a female worker because of her pregnancy constitutes direct discrimination on grounds of sex, in the same way as does the refusal to recruit a pregnant woman. Therefore, a woman is protected from dismissal because of her absence during the maternity leave from which she benefits under national law.

In Brown v Rentokil³⁷ the ECJ held:

 

‘dismissal of a female worker during pregnancy for absences due to incapacity for work resulting from her pregnancy is linked to the occurrence of risks inherent in pregnancy and must therefore be regarded as essentially based on the fact of pregnancy. Such a dismissal can affect only women and so constitutes direct discrimination on grounds of sex.³⁸ In Fletcher the EAT said that there was nothing in the judgment to suggest that there was any distinction between dismissal and other working conditions.

Any absence owing to illness resulting from pregnancy or childbirth cannot be taken into account for computation of the period justifying her dismissal under national law. In Fletcher the EAT said that it was impermissible for an employer to defend a complaint of sex discrimination by a pregnant woman by saying that all employees are treated in the same way, thereby applying the same rule to different situations. ³⁹

In CNAVTS v Thibault⁴⁰ the ECJ held that it was contrary to the ETD for a woman to be treated unfavourably in relation to her working conditions by being deprived of the right to an annual assessment of her performance, saying that:

’The principle of non-discrimination requires that a woman who continues to be bound to her employer by her contract of employment during maternity leave should not be deprived of the benefit of working conditions which apply to both men and women and are the result of that employment relationship. In circumstances such as those of this case, to deny a female employee the right to have her performance assessed annually would discriminate against her merely in her capacity as a worker because, if she had not been pregnant and had not taken the maternity leave to which she was entitled, she would have been assessed for the year in question and could therefore have qualified for promotion.’

In Busch⁴¹ the claimant took parental leave intending to be away for three years. She became pregnant and asked to return early and this was agreed. She then told her employer she was pregnant and the employer rescinded its consent to her returning to work on grounds of fraudulent misrepresentation as she only wanted to return to work to get the benefit of maternity allowance. The ECJ held that:

• since the employers may not take the employee’s pregnancy into consideration for the purpose of her working conditions, she is not obliged to inform her employer that she is pregnant;

• discrimination on grounds of sex cannot be justified by the fact that a woman is temporarily prevented from performing all of her duties;

• an employee canot be refused the right to return to work before the end of parental leave due to temporary prohibitions on performing certain work duties;

• discrimination on grounds of sex cannot be justified on grounds relating to the financial loss for an employer;

• the fact that Ms Busch returned to work in order to receive a maternity allowance higher than parental leave allowance, could not legally justify sex discrimination in relation to working conditions.

Sass and Herrero: protection during maternity leave

In Sass and Herrero the ECJ reiterated the wide protection given to women on maternity leave. In Sass the ECJ said:

‘a female worker is protected in her employment relationship agianst any unfavourable treatment on the ground that she is or has been on maternity leave’(para 35)

‘a woman who is treated unfavourably because of absence on maternity leave suffers discrimination on the ground of her pregnancy and of that leave. Such conduct constitutes discrimination on the grounds of sex within the meaning of Directive 76/207.’ ⁴²

In Herrero the ECJ held that:

‘since the aim of Directive 76/207 is substantive, not formal equality, Articles 2(1) and (3) and 3 of that Directive must be interpreted as precluding any unfavourable treatment of a female working on account of maternity leave or in connection with such leave, which aims to protect pregnant women, and that is so without it being necessary to have regard to whether such treatment affects an existing employment relationship or a new employment relationship’ (para 41).

 

‘The fact that other people, in particular men, may, on other grounds, be treated in the same way as Ms Herrero has no bearing on an assessment of her position since the deferment of the date on which her career is deemed to have started stemmed exclusively from the maternity leave to which she was entitled’.

3.11 Burden of Proof

Where the claimant proves facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent has committed an act of discrimination against the claimant the tribunal shall uphold the complaint unless the respondent proves that he did not commit or is not to be treated as having committed, that act (s63A SDA). See Igen Ltd v Wong [2005] IRLR 258 CA followed by Madarassy v Nomura International plc. ⁴³

4. Flexible Working Regulations

In 2002 the government introduced a right for employees to request flexible working to care for

• a child under six or disabled child under 6

• a disabled child under 18

• an adult in need of care

in relation to

1. the hours s/he is required to work

2. the times when s/he is required to work

3. where, as between her/his home and a place of business of her/his employer, s/he is required to work. ⁴⁴

The employee must:

• have 26 weeks service at the date the application is made,

• not be an agency worker or member of the armed forces,

• not have made an application in the previous 12 months

Parents must have responsibility for the upbringing of the child and make the application to care for the child and be the mother, father, adopter, guardian, special guardian or foster parent or be married to, or the partner, of the above.

Carers of adults in need of care must be caring for a spouse, partner, civil partner or relative, or if not the spouse, partner or a relative live at the same address as the adult in need of care. ‘Relative’ is very widely defined.

The employee and employer must go through a statutory procedure, which includes the employee making a written application, the employer holding a meeting, followed by the employer’s decision. The employer can refuse the application but only on specific grounds and it must give brief reasons.⁴⁵ The employee then has a right of appeal. Provided the procedure is followed, there can be no challenge by the employee to the refusal of any form of flexible working.

Lacuna: Children between 6 and 18 who are not disabled (ie in receipt of Disability Living Allowance) but who are ‘in need of care’.

 

Possible claims

• Breach of the procedure, though compensation is limited to 8 weeks’ pay at the statutory limit,

• Constructive dismissal where an employer fails to take the statutory procedure seriously,

• Right not to suffer a detriment or be dismissed on the ground that the employee made or proposed to make an application for flexible working,

• Indirect sex discrimination where the refusal cannot be objectively justified.

• Direct discrimination where, for example, a man is treated less favourably than a woman in his application for flexible working.

5. Indirect Discrimination

5.1 There are 4 elements to indirect discrimination:

(i) Identifying a practice, provision, criterion, requirement or condition (PCP); it is for the claimant to choose the PCP;

(ii) Showing that the PCP puts or would put women at a particular disadvantage compared to men;

(iii) Where the PCP puts the woman at that disadvantage;

(iv) Where the employer cannot show the PCP to be a proportionate means of achieving a legitimate aim; most of these decisions have concentrated on whether the practice is justified.

5.2. The PCP

The PCP should be widely defined and it is for the claimant to define.⁴⁶ It may be a single instruction, whether oral or written. It may be contained in a contract, policy, letter, procedure or collective agreement. It might cover preferred practices or be one of several criteria used. It may be applied to just one employee or a group of employees. It would cover the following:

• to work long hours; ⁴⁸

• to work full-time; ⁴⁷

• to work inflexible hours , e.g. normal contractual hours without variation;⁴⁹

• to work overtime/outside normal working hours;⁵⁰

• to work antisocial hours, for example weekends;⁵¹

• to change shift patterns;⁵²

• to do rotating shifts;⁵³

• to be office-based;⁵⁴

• to change hours at short notice;⁵⁵

• a mobility clause;⁵⁶

• to work as and when required;⁵⁷

5.3. Does the PCP put women at a disadvantage compared to men

Some tribunals and courts are willing to accept, from their own knowledge, that many of the above PCPs particularly disadvantage women. For example, in London Underground v Edwards (No 2)⁵⁸ the CA said that the ‘high preponderance of single mothers having care of a child is a matter of common knowledge’. Further the fact that the workforce was not representative (out of 2023, only 21 were women) meant that workforce statistics were unreliable and the tribunal could look outside. Unfortunately others are not so willing to accept either labour market statistics or ‘common knowledge’. ⁵⁹

 

In British Airways v Starmer ⁶⁰ the EAT upheld a tribunal’s decision that a provision that the claimant (a pilot) must work 75% of full-time, not the 50% she requested, was a provision which would be to the detriment of a considerably larger proportion of women than of men. The EAT held that a tribunal is entitled to take into account, where appropriate, a more general picture than is specifically displayed by statistics put in evidence.

 

The present definition is likely to make it easier for a claimant to show particular disadvantage as it covers not only actual disadvantage but potential disadvantage. The government recognised that it is not always possible or necessary to use detailed statistical calculations to show particular disadvantage and evidence may be obtained from a sociologist or other expert.

5.4. The claimant must have suffered a disadvantage

The claimant must be affected by the PCP. A practices cannot be challenged in the abstract. Arguably, ‘disadvantage’ means no more than denial of choice, so that a refusal of part-time work , so that the woman sees less of her child, is sufficient. Under the old law, in Ministry of Defence v Macmillan ⁶¹ the SEAT said that the real problem for the claimant was the travelling (four hours per day) not the full-time working.

5.5. Proportionate means of achieving a legitimate aim (justification)

Under unfair dismissal law, provided there is a potentially fair reason for dismissal and a fair procedure, the tribunal will only find for the employee if the employer has acted outside the ‘range of reasonable responses’. The defence to a claim of indirect discrimination involves the tribunal carefully scrutinising the employer’s behaviour to test whether there is a legitimate aim and the means of achieving the business aim are proportionate, bearing in mind the need to achieve equality.

The Employment Appeal Tribunal (EAT) said recently, in Craddock:

‘The equality legislation is not solely concerned with conferring rights on those within specific groups: it is a recognition of the fact that there is a public interest in ensuring that society is not deprived of the abilities of those who have much to contribute by prejudice about colour, gender, disability or sexual orientation or religious belief…

 

To say that employing part time employees can be inconvenient in that it requires an employer to make adjustments is a glimpse of the obvious. Yet the failure to make such adjustments to enable posts to be part time has a public as well as a private consequence in that it denies society of the services of a wider pool of potential employees and in the context of school teaching reduces the number of parents, normally mothers, who can bring to their work the insight and experience which parenting can confer’. ⁶²

In Craddock the EAT held that the ET did not carry out any balancing act between the discriminatory effect of the refusal of part-time work and the justification. They also held that the two matters of sex discrimination and constructive dismissal are inherently connected, thus a finding of indirect sex discrimination will almost inevitably lead to a finding of unfair and discriminatory constructive dismissal.

In Hardys & Hansons plc v Lax ⁶³ the Court of Appeal upheld an ET’s decision that a refusal to allow the claimant (a retail recruitment manager) to job share on her return from maternity leave was not justifiable. The CA held that the employer must show the refusal is justified objectively notwithstanding its discriminatory effect. This requires the ET to take into account the reasonable needs of the business, but it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary. That ‘necessary’ is qualified by ‘reasonably’ reflects the applicability of the principle of proportionality and does not permit a margin of discretion or range of reasonable responses (the test for unfair dismissal). Thus the ET were entitled to find that the employers had insufficiently explored the possibilities for job sharing and that their objections to it were overstated.

The CA said that an ET must critically evaluate the employer’s systems of work, their feasibility or otherwise, practical problems which may or may not arise from job sharing in a particular business and the economic impact, in a competitive world, which the restrictions impose upon the employer’s freedom of action. Where the economics of the business or its working practices forms part of the justification the CA would expect the reasons to set out at least a basic economic analysis of the business and its needs. Although the extent of the analysis of the business and its working practices must depend on the nature of the justification and the enterprise, the analysis must be thorough and critical and show a proper understanding of the business of the enterprise. The CA also said that the evaluation requires considerable skill and insight of the ET and a broader understanding of the needs of business will be required than in most other situations where ETs make decisions. Thus, tribunals must make a critical evaluation of all the facts.

In British Airways v Starmer ⁶⁴ the EAT held that the tribunal was entitled to reject the employers’ arguments based on the extra training costs, inability to re-organise work among other existing employees, existing recruitment freeze (which the tribunal said was self-imposed) and health and safety reasons (which were only raised in response to the claim, not at the time of refusal). Thus, although the decision of the Respondent and its business reasons will be respected, they must not be uncritically accepted. Costs reasons may weigh in the balance, but must be explained in detail. Retrospective justification may be taken into account, but is likely to have less credibility. Self-imposed policies are unlikely to be relevant.

In Brown v McAlpine & Co Ltd ⁶⁵ the respondents relied on the fact that they had attempted to find a job share partner for the claimant but failed, so the refusal was justified. The EAT held that ‘had the tribunal felt that the respondents had not taken reasonable steps to find a job share partner, in the circumstances of this case, it is difficult to see that they would have been satisfied that the respondents were justified in their approach’. Although there is no rule that employers must take positive steps to try and find a job share partner, the implication is they should try though in ‘a case of urgency or financial constraint, an employer might be able to justify a job share refusal without having gone through the process of trying to find a job sharer’.

In Banner Business Supplies Ltd v Greaves⁶⁶ the claimant was dismissed because she could not attend an annual stocktake at a weekend because she could not arrange child care. The EAT remitted it to the tribunal as they had not undertaken the Bilka analysis, ie that the measures chosen corresponded to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued and are necessary to that end.⁶⁷

The courts have held that Member States have a broader margin of discretion in relation to the application of national policies, provisions etc which are prima facie discriminatory as they have ‘a margin of appreciation’. A possible exception to this is the statement in Kutz-Bauer when the ECJ held that

‘to concede that budgetary considerations may justify a difference in treatment between men and women which would otherwise constitute indirect discrimination on grounds of sex would mean that the application and scope of a rule of Community law as fundamental as that of equal treatment between men and women might vary in time and place according to the state of the public finances of Members States.’⁶⁸

However, other ECJ decisions have held that that a public authority cannot justify discrimination solely because elimination of such discrimination would involve increased costs, implying that they cannot on their own constitute justification.⁶⁹ However, in Cross v British Airways ⁷⁰ the EAT held that:

’It seems to us a clear and understandable proposition that a Government, with its notionally bottomless purse, cannot be permitted to justify a social policy which is obviously discriminatory, on grounds of costs….A national state cannot rely on budgetary considerations to justify a discriminatory social policy. An employer seeking to justify a discriminatory PCP cannot rely solely on considerations of costs. He can however put cost into the balance, together with other justifications if there are any.’

Apart from costs, however, it is generally easier for a Member State to justify a policy than it is for an individual employer. Arguably, therefore, the principles set out above in Hockenjos should also be applied with equal, if not more force, to individuals.

European Community Recommendation on Childcare,although not binding, is intended to provide a work environment, which takes into account ‘the needs of all working parents with responsibility for the care and upbringing of children’. It states, for example:

• hours can be reduced by part-time work by (temporarily) reduced working hours and by jobshare. It is not common yet for either option to be available at professional and managerial levels, although there is, in practice, little reason why this should be so;’

• hours can be staggered by shift work or flexi-time. These options can include a very wide range of possibilities – term-time working, weekly shifts, three- or four-day weeks, weekly/monthly/annual balancing of hours;

• flexi-place arrangements can be combined with flexible hours to create an extremely creative response to reconciling work and family responsibilities.

6. Discrimination against part-timers

The UK and EC courts, have long held that less favourable treatment of part-timers is indirect discrimination unless justified. This principles has been applied to the following (though these are only examples):

1. pay; where part-time workers were paid less than full-time workers;⁷¹

2. bonus; where part-timers were excluded from a collective agreement which provided for the grant of a special annual bonus, this was indirect discrimination;⁷²

3. occupational pensions; where workers were only entitled to a pension if they had worked 15 full-time years. ⁷³ 60,000 cases have been brought in the UK by part-time workers claiming equal pro rata pension rights. There have been a huge number of ECJ decisions on pension rights;

4. contractual sick pay; a requirement to work for more than 10 hours weekly was indirect discrimination; ⁷⁴

5. training; a part-time employee attended a full-time training course but was not paid for the full week as she only worked part-time. The ECJ held this to be indirect discrimination; ⁷⁵

6. benefits based on length of full-time service where part-time workers are treated as having shorter length of service than comparable full-timers; ⁷⁶

7. exemption from a qualifying examination as a result of total length of professional experience; thus where the length of professional experience was extended on a pro-rata basis for part-time workers, that gave rise to indirect discrimination unless objectively justified; ⁷⁷

8. promotion; the claimant’s employment, working 50% of normal hours, counted as two thirds of full-time hours, so she was not promoted; this was indirect discrimination; ⁷⁸

9. dismissal/ redundancy, eg selecting part-timers for redundancy before full-timers will be indirect discrimination unless justified;⁷⁹

10. overtime; a requirement that all teachers, full-time and part-time, work three hours over their contractual hours before being entitled to payment, could amount to indirect discrimination, as the extra 3 hours was a greater burden for part-timers than full-timers. ⁸⁰

Less favourable treatment of a woman who takes parental or dependants’ leave may be indirect discrimination.

7. Fathers rights

• Paternity leave (2 weeks)

• Adoption leave (as for all adopters)

• Parental leave (as for mothers)

• Time off for dependants (as for other employees)

• Flexible working to care for a child under 6 or adult in need of care (as for other carers)

• Protection for direct discrimination, eg where refused flexible working in a situation where a women in a similar situation would be granted it

• Protection from detriment and dismissal for exercising family rights.

8. Carers’ rights

The same principles relating to indirect sex discrimination could apply to employees needing flexible working to care for adults. Statistics (From Carers UK) show that women are more likely than men to be carers in all age groups under 75 years. Thus, a quarter of all women aged 50-59 and about 1 in 6 men, provide unpaid care. The question of whether a refusal of flexible working is justified will be the same as for cases involving childcare.

Other rights and possible claims for carers:

• Breach of Flexible Working Procedure,

• Right not to be dismissed or suffer a detriment for making or proposing to make a request for flexible working,

• Time off for a dependant who falls ill or to make provision for care for a dependant or because of the disruption to care arrangements.

• Protection from unfair dismissal – where employee has one year’s service,

• Disability discrimination: The case of Attridge Law v Coleman ⁸¹ has been referred to the ECJ. The claimant complained that she was treated less favourably when her employer refused the flexibility she required in order to car for her disabled son – so she was discriminated against due to her association with a disabled person. The ECJ will decide whether the DDA can protect people, who are not disabled, but by association with a disabled person.

• Direct sex discrimination: If, for example, a man was treated less favourably than a woman for requesting time off to care for an adult in need of care or for taking time off for this reason. ⁸²

• Part-time workers regulations 2000, which protects part-time workers from less favourable treatment.

• Age discrimination?

Camilla Palmer, Palmer Wade

www.palmerwade.com

Co-author of Maternity & Parental Rights, Legal Action Group 2006

September 2007

26 Brown v Rentokil [1998] IRLR 445

27 Visa Service Association International v Paul [2004] IRLR 42 EAT

28 Lee v Relate Berkshire [2003] UKEAT 1458 27 March 2003

29 WEU guidance p12

30 Abbey National plc v Formoso [1999] IRLR 222

31 North Western Health Board v McKenna [2005] IRLR 895 ECJ

32 Advocate General in Webb approved in Fletcher see para 67

33 Tele Danmark A/S v Handels-og Kontorfunktionaerernes Forbund I Danmark (HK) acting on behalf of Brandt-Nielsen [2001] IRLR 853

34 Dekker v Stichting Vormingscentrum voor Jonge Volwassenen (VJV-Centrum) Plus [1991] IRLR 27, ECJ

35 Mahlburg v land Mecklenburg-Vorpommern [2000] IRLR 276 ECJ

36 Handels-og Kontorfunktionaerernes Forbund I Danmark (acting for Hertz) v Dansk Arbejdgiverforening (acting for Aldi Marked K/S) [1991] IRLR 31, ECJ

37 [1998] IRLR 445, ECJ

38 para 24, see also para 68 of Fletcher

39 Fletcher para 69

40 [1998] IRLR 399 ECJ

41 Busch v Klinikum Neustadt GmbH & Co Betriebs-KG, C-320/01 [2003] IRLR 625 ECJ.

42 Equal Treatment Directive see para xx

43 [2007] IRLR 246 CA

44 Employment Rights Act s80F; see also Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 SI 2002/3236, Flexible Working (Procedural Requirements) Regulations 2002 SI 2002/3207

45 In Commotion Ltd v Rutty [2006] IRLR 171 the EAT held that the employer was in breach of the procedure as it failed to investigation the request thus the reason for turning down the application was based on incorrect facts.

46 see Allonby v Accrington & Rossendale College & Ors [2001] ICR 1189; this was under the old definition and the present definition is even wider.

47Holmes, op.cit.n.51; Hardys and Hansons PLC v Lax [ 2005] IRLR (a refusal to permit the job share of a full-time job)

48 Cowley v South African Airways ET 1999 (a requirement to work back to back double shifts)

49 Dillon v Rentokil Initial UK Ltd ET 2700899/01; Commotion Ltd v Rutty EAT/0418/05

50 Briggs v North Eastern Education and Library Board [1990] IRLR

51 Banner Business Supplies Ltd v Greaves EAT/0420/04 EAT 4.11.04

52 London Underground v Edwards Smith v High Table ET 2000 (introduction of a shift pattern of 6 a.m.-2 p.m. and 1 p.m.-9 p.m.);

53Hale & Clunie Wiltshire Healthcare NHS Trust 1999 DCLD 39

54 Unn v Presentation Services Ltd ET 2301439/00 (requirement to work only in the office rather than from home); Lockwood v Crawley Warren Group Ltd EAT 1176/99 DCLD 47 EAT 28.6.00 (1176/99) (refusal to consider working from home); Castleton v Department for Work and Pensions EAT 0715/02 (requirement to work two days a week in the office as opposed to one out of 10 days)

55 Banner Business Supplies v Greaves EAT 0420/04 (a provision to work a particular weekend); Smith v Greyfriars Taverns Ltd ET2801894/01 (a requirement to work varied hours at short notice)

56 Meade-Hill and anor v British Council [1995] IRLR 478 (CA)

57 Manning v Wick Hill ET 2002 (PCP to work full-time and fully flexibly); Oddbins v Robinson EAT 188/96 unreported (a requirement to work such hours as may be necessary)

58 [1999] ICR 494

59 See Sinclair Roche & Temperley v Heard [2004] IRLR 763 where the EAT held that the ET was not entitled to conclude that because women have greater responsibility for childcare, a considerably larger proportion of women than men are unable to commit themselves to full-time working, if this was intended to be a relevant finding with regard to men and women solicitors or men and women working in high-powered and highly-paid jobs in the City.

60 [2005] IRLR 862

61 EATS/0003/04 22.9.04

62 Craddock v (1) Cornwall County Council (2) The Governing Body of Indian Queens CP School & Nursery

63 [2005] IRLR 726

64 [2005] IRLR 862

65 EAT 22.9.05 EATS/0009/05

66 3.11.4 EAT UKEAT/0420/04

67 though necessary has since been qualified to mean ‘reasonably necessary’

68 citing Jorgensen v Foreningen af Speciallaeger [2000] IRLR 726 ECJ and De Weers and others v Bestuur van de Bedrijfsvereniging voor Gezondheid [1994] ECJ –571

69 Steinicke v Bundesanstalt fur Arbeit [22003] IRLR 892 where the ECJ held that budgetary considerations may underlie a Member State’s choice of social policy and influence the nature or scope of the social protection measures which it wishes to adopt, they do not I themselves constitute an aim pursued by that policy and cannot therefore justify discrimination against one of the sexes

70 [2005] IRLR 423 EAT

71 Jenksins v Kingsgate (Clothing Productions) Ltd (No 2) [1981] IRLR 388, EAT

72 Kruger v Kreiskrankenhaus Ebersberg [1999] IRLR 808 ECJ

73 Bilka-Kaufhaus GmbH v Karin Weber von Hartz [1986] IRLR 317; this laid down the test for justification which has subsequently been followed by most courts

74 Rinner-Kuhn v FWW Soecial-Gebaudereinigung GmbH & Co [1989] IRLR 493

75 Arbeiterwohlfahrt der Stadt Berlin v Botel [1992] IRLR 423 ECJ

76 Hill v Revenue Commissioners [1998] IRLR 466

77 Kording v Senator Fur Finanzen [1997] IRLR 710 ECJ

78 Gerster v Freistaat Bayern C1/95 [1997] IRLR 700

79 Clarke v Eley (IMI) Kynock Ltd [1982] IRLR 482, EAT

80 Elsner-Lakeberg v Land Nordrhein-Westfalen [2005] IRLR 209 ECJ; A full-time teach had to work an additional 3% to be paid whereas a part-time worker had to work 5% extra.

81 [2007] IRLR 88 EAT

82 Walkingshaw v The John Martin Group ETS 401126/00 Edinburgh (unreported)