Fidessa PLC v Lancaster (Part Time Workers)

A worker returning from maternity leave within the twelve-month period in regulation 4 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 returns to work even if she immediately takes accrued paid annual leave. The employment relationship is not in abeyance during that leave.

For harassment based on effect, the tribunal must make findings both as to the claimant’s own perception and as to whether that effect was reasonable. It cannot assume the claimant’s subjective response. An indirectly discriminatory requirement which makes an otherwise suitable alternative redundancy role unsuitable may nevertheless render a redundancy dismissal unfair under section 98(4) of the Employment Rights Act 1996.

The claimant was made redundant after declining to apply for a new engineering role. She alleged that its requirement to undertake deletion work on site after 5.00pm indirectly discriminated against women with childcare responsibilities. She also complained of part-time worker detriment, direct sex discrimination and harassment after learning that a manager had reacted adversely to news of her pregnancy.

The Watford Employment Tribunal upheld those claims and held the dismissal unfair. The employer appealed. The principal issues were the proper construction of regulation 4 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, the need for findings of subjective impact in direct discrimination and harassment claims, the alleged disadvantage from the PCP, and the fairness of the redundancy dismissal.

1. Appeal allowed in part. The appeal failed concerning the part-time worker claim, indirect sex discrimination and unfair dismissal. It succeeded concerning the direct sex discrimination and harassment findings, which were remitted to the same ET if practicable.

2. Regulation 4 permitted comparison with the claimant’s former full-time position. A return from maternity leave within twelve months remained a return to work where it was followed immediately by accrued paid annual leave. A contrary construction would artificially require a physical return for a day, discourage annual leave, and wrongly treat the employment relationship as in abeyance.

3. The ET was entitled to find that requiring work after 5.00pm inconsistently with the agreement concerning the claimant’s hours was less favourable treatment because of her part-time status.

4. The manager’s pregnancy-related remark could objectively constitute less favourable treatment and could reasonably have the effect required by section 26(1) of the Equality Act 2010. However, the ET made no finding of the claimant’s actual reaction when she learned of it. Such a finding was necessary both to establish detriment and to establish the subjective limb of harassment based on effect. The EAT could not supply that omission by assumption.

5. The indirect discrimination finding stood. The ET had identified a PCP requiring work after 5.00pm and on site, the group disadvantage to women with nursery collection responsibilities, and the claimant’s particular disadvantage. Her additional concern about career progression did not negate the finding that the PCP contributed to her decision not to apply.

6. The redundancy dismissal remained unfair under section 98(4) of the Employment Rights Act 1996. The new role was rendered unsuitable by the indirectly discriminatory PCP, and the ET’s reasoning on unfair dismissal depended on that finding rather than on the flawed direct discrimination finding.

• Employment Appeal Tribunal: Allowed the employer’s appeal only on the direct sex discrimination and harassment findings, and remitted those issues to the same ET if practicable.
• Watford Employment Tribunal: Judgment sent on 7 December 2015. It upheld the claimant’s claims for part-time worker detriment, direct and indirect sex discrimination, harassment and unfair dismissal.