In Fidessa Plc v Lancaster, Lancaster (L) made a flexible working request during her period of maternity leave to which the employer agreed. She subsequently returned to work, after taking a short period of annual leave, on a part-time basis, working four days a week from 9.00am to 5.00pm, although it was agreed there might be some flexibility around those times.  Leaving work at 5.00pm was an important issue for L as she needed to finish then so as to be able to collect her daughter from nursery.

An issue arose later over L working beyond 5.00pm. Her role included deleting connections that service users no longer needed, to free up computer space and improve function.  The client profile meant the process could only be done after 4.30 pm. L accepted that this would sometimes require her to stay later than her agreed leaving time. Her line manager put arrangements in place to assist, by getting others to help with the work and allowing L to complete deletions remotely from home. However, another line manager, Tumber (T) refused to accord the same flexibility, with the result that L was required to work after 5.00pm to a greater extent.

T obtained agreement to reorganise the department, which included reducing the number of jobs. Existing staff were told they could apply for the two new roles. L was unsuccessful in her application for one of the roles.  She declined to apply for the other role, as she was concerned that the work was to be focused on deletions, would have no variety or opportunity for progression and required work to be undertaken after 5.00pm. There being no other suitable vacancies available at the time, L was made redundant. An ET upheld L’s claims for unfair dismissal, indirect sex discrimination and detriment related to part-time working. The EAT rejected the employers appeal against all three findings.

Firstly, reneging on the agreement that L could leave work at 5.00pm amounted to less favourable treatment of which L’s part-time status was the predominant and effective cause.

As for indirect sex discrimination, the employer had applied two provisions, criteria or practices (PCPs) to the new role, i.e. connection deletions could only take place after 5.00pm, which could not ordinarily be performed at home. That would put women, and L, at a disadvantage, and there had been no proper consideration of alternative ways of working, notwithstanding that T had previously said that L should work from home when she had asked for leave to care for her sick child.

Finally, L’s dismissal was causally related to indirect sex discrimination as she did not apply for the engineer’s position because of T’s attitude to her over wanting to finish work promptly at 5 pm. The dismissal was therefore tainted by indirect sex discrimination and so unfair.

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