Sex discrimination: questions and answers on indirect discrimination
Kate Brittin of Lewis Silkin concludes her series of articles on sex discrimination by exploring the new definition of indirect discrimination by way of questions and answers based on a practical example.
Scenario
Sonya is one of Blog Co's technical support advisers, working from Monday to Friday, 9.30 am to 5.30 pm. She gives telephone advice to clients who are experiencing technical problems with their software. During her current maternity leave Sonya's job is being covered by a full-time temp.
Sonya wants to work three days a week on her return from maternity leave. Her mother will look after the baby on Tuesdays, Wednesdays and Thursdays, but is unable to do so on Mondays and Fridays on account of her own work commitments. Sonya does not trust anyone else to look after her baby and, in any event, says she cannot afford to pay anyone as her husband is currently unemployed.
Sonya's line manager Bill does not think that a part-time arrangement would work because of the need for continuity and familiarity with clients.
What are the legal issues?
The legal issues are indirect sex discrimination and the statutory right to request flexible working.
What are Sonya's rights?
If she has taken ordinary maternity leave, she is entitled to return to the job that she was doing before she left on the same or better terms and conditions. If she has taken additional maternity leave, she is entitled to return to work on the same or better terms and conditions, but not necessarily to return to the same job.
Sonya does not have the right to vary her terms and conditions, but does have the right to ask for flexible working and to have her request properly dealt with. For further details on this, see the second article in this series.
How does indirect indiscrimination come into the equation?
Under the new definition of indirect sex discrimination, in force from 1 October 2005, a person discriminates against a woman if the person applies to her a provision, criterion or practice that the person applies or would apply equally to a man, but:
which puts or would put women at a particular disadvantage when compared with men; and
which puts her at that disadvantage; and
which the person cannot show to be a proportionate means of achieving a legitimate aim.
An employer's refusal to accommodate an employee's request to alter her working pattern on returning from maternity leave may amount to indirect sex discrimination.
What is the 'provision, criterion or practice'?
Requiring that an employee work full time will generally constitute applying a 'provision, criterion or practice' to her, even if that has always been part of her job.
How will Sonya prove that more women are, or would be, disadvantaged by it?
Under the new definition of indirect discrimination, tribunals will put less emphasis on identifying the pool for comparison, which in this case would probably be the Blog Co workforce, and analysing who within that pool can work full time and who cannot. This kind of elaborate and often difficult statistical analysis will not always be helpful, and the tribunals are now freer to use their own general knowledge and experience of the world and the workplace to decide whether one sex is more disadvantaged by something than another. They might, in appropriate cases, hear evidence from experts and other witnesses.
A tribunal is very likely to conclude that a far greater proportion of women than men have responsibility for organising childcare and fitting their working lives around it, and are thus less likely to be able to comply with a provision that requires full-time working.
Is Sonya disadvantaged?
Blog Co may challenge Sonya's assertion that she personally is disadvantaged by a full-time requirement when compared to a man. For one thing, her husband is not working, and Blog Co may assert that she is no more disadvantaged than a man with a partner who did not work. However, it may well be that Sonya's husband cannot realistically take care of the baby if he is seeking work and is likely to be called for interview or hired at short notice.
Another line of attack might be the assertion that Sonya could pay someone to cover her other days. However, this is not an argument that the tribunals have encouraged in the past, preferring not to cross-examine claimants on their personal finances.
Does Blog Co have a good reason for the refusal?
This depends on whether the company's requirement for full-time working is 'a proportionate means of achieving a legitimate aim', ie is having continuity of client care a legitimate business aim, and is requiring Sonya to work full time a 'proportionate' - meaning appropriate and necessary - means of meeting that aim? If so, Blog Co is unlikely to be guilty of indirect sex discrimination.
This tends to be the crunch issue and is always looked at in the context of the individual case. Relevant factors include:
the size and resources of the employer;
the type of work that the employee does;
any factors restricting the way in which the work is organised; and
what efforts the employer has made to accommodate the employee's request to work on a different basis.
So far as Sonya is concerned, the company may indeed have valid commercial reasons for saying that full-time working is an essential component of her post. However, it is important that her line manager's assertions are not be taken at face value, as he may be adopting an unduly inflexible attitude.
First, Blog Co should look at how the existing arrangements for giving advice work in practice. For example, how is cover organised between the team of advisers? Do they divide clients between them so that each client is always dealt with by the same adviser? If so, that would be an argument in favour of a full-time requirement. Or do clients phone the department and get dealt with by the next available adviser, which would suggest that the role could effectively be filled part time.
Second, if the current arrangement is restrictive, it may not really be necessary for it to be so. Clients may not mind whether they talk to the same adviser each time, so a part-time or job-sharing arrangement could work.
Before responding to Sonya, it will be necessary for Blog Co to carry out a thorough investigation and reach a balanced decision on whether it is feasible to reorganise working arrangements so as to accommodate her request. Blog Co will have to balance the potential cost and inconvenience of allowing a part-time working arrangement against the risk of having to defend an indirect sex discrimination claim if it refuses.
Next week's article will be the first of four looking at the employment implications of the Civil Partnership Act 2004.
Kate Brittin is a member of the Employment Team at Lewis Silkin (Kate.Brittin@lewissilkin.com)
Further information on Lewis Silkin can be accessed at www.lewissilkin.com
