Duncan Lewis

Legal Aid

Lawyers London

Employment Tribunal rules refusal of part-time work not discriminatory

Date: (28 May 2013)    |    

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Mrs Suvari who worked for ICE Markets (IM) as a sales executive, selling software to traders and brokers in the financial services sector, had to go on maternity leave and on return, she requested to return to her role part time, working three days a week. Her request was refused on the grounds that ICE Markets did not believe the role could be done in three day week basis as it put much burden on other sales executive and would have adverse impact on customer service and performance.
Mrs Suvari was offered the possibility of working a four day week, on a six month trial basis. But Mrs Suvari resigned and brought a claim for indirect discrimination.
A tribunal rejected Mrs Suvari’s constructive and unfair dismissal and indirect sex discrimination claims. The employer had a legitimate and genuine business aim, i.e. to require their highly paid sales executives to work a five-day, or at least a four-day, week to maintain high levels of client contact and care in a highly dynamic IT/finance environment. The employer had also acted in a proportionate way in trying to achieve its aim, as demonstrated by its offer to consider four-day working on a trial basis, so it was not an ‘all or nothing’ situation’, and the needs of the business far outweighed any discriminatory effect.
Under the Equality Act 2010 (EqA), a provision, criterion or practice (PCP) which applies equally to all employees can still be indirectly discriminatory where, in practice, it puts, or would put, a group of people with a particular protected characteristic (such as women) at a disadvantage, and puts a particular individual or individuals with that characteristic, (in this case Suvari) at that disadvantage. An employer would need to demonstrate that the PCP was a proportionate means of achieving a legitimate aim in order to avoid liability for indirect discrimination.
A classic example of a claim for indirect discrimination is of an employer which has a policy requiring all employees to work full time. It is commonly argued that such policies place women at a particular disadvantage, since women remain the primary providers of childcare. The employer is therefore vulnerable to an indirect discrimination claim being brought by a female employee who is disadvantaged by the policy, for example, a woman who has requested to return to her role part time following maternity leave and has had that request rejected.
In many cases the tribunals have accepted that such policies place women at a particular disadvantage.
However, the ET held that Suvari had not provided statistical evidence to show that proportionately more women with young children than men with young children worked part time and, in the absence of such statistics, the Employment Tribunals were "not persuaded that it could simply take the matter on trust.
However, the ET did not decide definitively on this issue of part time work as it found that even if Suvari shown a disadvantage to women and to her, ICE Markets had provided sufficient evidence to justify the refusal of her flexible working request as being a proportionate means of achieving a legitimate business aim.