In a recent case before the Employment Appeal Tribunal (EAT) an employee brought claims for indirect sex discrimination and part-time worker detriment after being required to work beyond 5pm by her employer.
Ms Lancaster worked as an engineer for Fidessa, which provides software for financial services companies. As part of her role she was required to ‘delete connections’ after the end of trading on UK markets at 4.30pm. This would sometimes involve staying at work after 5pm. Following a period of maternity leave, Ms Lancaster moved from full-time hours to a four day week, striking an agreement with her line manager, Ms Nosal, that she could leave work at 5pm (subject to a degree of flexibility) and complete her duties at home due to childcare commitments.
When the head of Ms Lancaster’s department later found out about the arrangements he refused to maintain this degree of flexibility. Fidessa also later reorganised Ms Lancaster’s team, reducing headcount from three to two. Ms Lancaster was not offered the more senior post and refused to apply for the junior role, in part because it would have required her to attend work after 5pm.
The EAT held that Ms Lancaster was entitled to compare her part-time terms with her previous full-time terms of employment and that Fidessa’s failure to afford Ms Lancaster the flexibility it had previously agreed to was less favourable treatment on account of her part-time status. The EAT also held that Fidessa’s requirement that employees remain at work after 5pm was indirectly discriminatory, as it put both Ms Lancaster and women in general at a particular disadvantage (due to childcare responsibilities falling more often on women than men) and was not justified.
The case is a reminder that employers must be able to justify policies that require employees to attend work at certain specific times of the day. If appropriate workaround options are available then it will be prudent both to implement and then abide by these in order to avoid claims of indirectly discriminatory practices. When an employee moves from full-time to part-time hours then they must not be subjected to any detriment for doing so.