Mather v Devine & Ors (Bramhall Park Medical Centre)

A claimant need not make a formal application before an employer’s refusal to consider a proposed part-time job-share can found an indirect sex-discrimination claim. A single decision or refusal may constitute a provision, criterion or practice. The tribunal must determine whether the refusal placed women, and the claimant, at a particular disadvantage and, if so, whether it was a proportionate means of achieving a legitimate aim.

A tribunal considering harassment under Sex Discrimination Act 1975 section 4A must make findings on the pleaded conduct and explain why it does or does not satisfy the statutory definition. A blanket conclusion without adequate reasons is insufficient.

The claimant, a GP partner, alleged sex and pregnancy discrimination, indirect discrimination, harassment and expulsion from a medical partnership after disputes about maternity leave and her proposed return to work.

The Employment Tribunal dismissed the direct discrimination, harassment and expulsion claims unanimously. By a majority it dismissed the indirect discrimination claim, holding that no provision, criterion or practice required the claimant to return full-time and that she had made no sufficiently formal or detailed job-share request.

The claimant appealed the indirect discrimination, harassment and expulsion decisions. The central issues were whether her email and subsequent discussion amounted to a part-time job-share request, whether a one-off refusal could be a provision, criterion or practice, and whether the harassment claim had been adequately addressed.

1. The appeal was allowed in part. The indirect discrimination and harassment claims were remitted to a freshly constituted Employment Tribunal. The appeal concerning expulsion was dismissed.

2. The Employment Tribunal erred in treating the absence of a formal application as decisive. No formality was required for the claimant to advance a part-time job-share proposal. On its proper construction, her email made such a request and offered two possible arrangements. Its later discussion at the meeting also meant that the Tribunal could not properly find that no compromise had been suggested.

3. A provision, criterion or practice may consist of a one-off decision. The fresh Tribunal must determine whether the partnership’s failure to respond to, or refusal to countenance, the job-share proposal was a provision, criterion or practice within section 1(2)(b) of the Sex Discrimination Act 1975. It must then decide whether women and the claimant suffered the required particular disadvantage and whether any disadvantage was justified by the aim of maintaining five committed full-time partners.

4. The harassment reasons were inadequate. The claimant’s allegations concerning exclusion from the away-day, the conduct at the meeting, and the job-share proposal were capable of falling within section 4A. The Tribunal had to make findings on the asserted facts and explain whether the conduct created a hostile, humiliating or offensive environment. Its general conclusion that none of the matters fell within the provision did not meet that obligation.

5. The expulsion claim had properly been rejected. The constructive-dismissal complaint had been withdrawn at the case-management discussion, constructive expulsion was not properly advanced, and the resignation depended on an alleged nine-month contractual entitlement which the Tribunal had rejected.

6. Remittal was to a fresh Tribunal. The original Tribunal had been divided on indirect discrimination and had adopted an inadequate blanket approach to harassment, creating a material perception-of-fairness concern.

• Employment Appeal Tribunal: allowed the appeal in part and remitted the indirect discrimination and harassment claims to a fresh Employment Tribunal.
• Employment Tribunal, Manchester: dismissed the direct discrimination, harassment and expulsion claims unanimously, and dismissed the indirect discrimination claim by a majority judgment dated 17 November 2011.