Employers' Refusal to Permit Job Share Discriminatory

Even before April 2003, when parents and others responsible for looking after young children were given the legal right to have their requests for flexible working arrangements taken seriously by their employers, an employer who refused a woman who was working full-time the right to return to work as a part-timer, after she had taken maternity leave, could be found to have discriminated against her on the grounds of her sex if the refusal could not be justified. Indirect sex discrimination occurs when a ‘provision, criterion or practice’ is applied equally to all employees but has a disproportionate effect on one gender.

A recent case in the Court of Appeal looked at the test which should be applied in these circumstances.

Mrs Lisa Lax was employed as a retail recruitment manager (RRM) by Hardy and Hansons plc, a brewery firm which runs a chain of managed and tenanted public houses. Mrs Lax’s job involved the recruitment of managers and other personnel and finding tenants. In January 2002 she told her manager that she was pregnant and in March requested to be allowed to work part-time on her return to work from maternity leave. Her request was rejected on 13 May 2002.

Whilst Mrs Lax was away on maternity leave, jobs at the company were reappraised. A new role of Tenant Support Manager (TSM) was created, which included part of the RRM’s role. The rest of the RRM’s duties were to be carried out by Area Managers. On 5 February 2003, Mrs Lax told her employers that she was unable to work full-time and did not wish to be considered for the full-time post of TSM. She was therefore given notice of dismissal on the ground of redundancy.

The Employment Tribunal (ET) upheld Mrs Lax’s complaint of indirect sex discrimination and also found that she had been unfairly dismissed. The Tribunal decided that the job of TSM could have been done by two part-time workers and did not accept the employers’ argument that certain functions could not be split between two people job-sharing. This decision was upheld by the Employment Appeal Tribunal.

At the Court of Appeal the employers argued that the ET had applied the wrong test to the issue. They ought to have been granted a ‘margin of discretion’ whereby even if the ET did not agree with their decision not to allow the job share, it could not hold the employers’ assessment to be unlawful if it fell within a permitted range of reasonable responses. They also contested that the assessment of the evidence by, and the reasoning of, the ET amounted to an error of law.

The Court ruled that in deciding whether refusal to permit a job share to a new mother is justified, the ‘band of reasonable responses’ test is not appropriate. The correct test is an objective one. The ET must weigh up the justification of the action complained of, in terms of the economics of the business and its working practices, against its discriminatory effect. The employers were unsuccessful before the ET because they failed to persuade it that their decision was justified. The Court did not find that the ET’s ruling displayed an error of law which would warrant setting aside its decision.