Employee dismissed for refusing to go full-time was unfairly dismissed and discriminated against on grounds of sex

Employee made redundant after employer refused to allow her to continue to job share.

Employers may at some point need to restructure or reshape the way in which they work.  This could reflect a change in workloads or budget but will usually involve some element of a change to job roles and descriptions and possibly include redundancies.

Reshaping the way in which an organisation operates can include considerations on whether part time or other flexible working is working for the organisation. A recent employment tribunal case looked at an employer's intention to require a part time worker to go full time, in the context of redundancy, sex discrimination and unfair dismissal, and highlights the need for employers to have a clear business case for imposing full time working.

Case details: McBride v Capita Customer Management Ltd

Ms McBride returned to work from a career break in 2017. She agreed to start a new role hoping that the working hours could be condensed to fewer days a week to help her attend to family matters. However, Capita informed her that the business required a person in the role to work Monday to Friday.

After Ms McBride submitted a flexible working request, Capita subsequently arranged for Ms McBride to job share with another female employee. At about this time Capita were experiencing problems and introduced a new plan to simplify the business. This led to a determination, amongst other things, that Ms McBride's team should be streamlined and required full-time only employees.

The team restructure began and Ms McBride, together with her job share colleague, was informed her position was at risk. Ms McBride raised questions about the rationale behind the need for the new role to be full-time, but didn't receive clear reasons from her manager. Following consultations, Ms McBride was informed she was being made redundant. She appealed the outcome, but the original decision was upheld and she left the business in September 2018.

Ms McBride brought claims of indirect sex discrimination and unfair dismissal. Capita conceded that Ms McBride was disadvantaged (as a woman) by a provision, criterion or practice ('PCP') (specifically, requiring certain managers to work full-time hours and that a single person should work those hours). However, it defended the claim on the grounds that her dismissal was a proportionate means of achieving legitimate business aims. Capita argued that the dismissal was a genuine fair redundancy dismissal and, in the alternative, that the circumstances surrounding Ms McBride's dismissal amounted to some other substantial reason ('SOSR'), again referencing the business requirements for full-time employees to perform the roles.

Tribunal's decision

The tribunal upheld both Ms McBride's claims.

On indirect discrimination, the tribunal recognised Capita had a legitimate business aim in restructuring Ms McBride's team to help Capita overcome financial difficulties. However, the tribunal found there was insufficient evidence to show that it was proportionate to require one person to carry out the role full time and not to allow a job share.  

On unfair dismissal, the tribunal carefully considered whether Ms McBride had in fact been dismissed by reason of redundancy. It found that there had not been a diminution of work for the role and that changing a role from part-time to full-time did not make it 'work of a different kind' for the purposes of the relevant redundancy provisions. As such, the tribunal held that there was no redundancy situation in law.

Further, the tribunal held that the requirement for Ms McBride to work full-time, and her subsequent inability to do so, was not a substantial reason justifying her dismissal for the purposes of SOSR. This centred around the tribunal's finding that it was not a conclusion a reasonable employer would have come to, particularly because Capita had little more than a manager's unsubstantiated opinion and impression that this was the case and it had not permitted Ms McBride and her colleague to trial the role on a job share basis, in order to gain genuine insight to the requirements of the role.

Wrigleys' comment

This case serves as a further reminder that proportionality remains key to defending indirect discrimination claims and that building cases based on assumptions will be fatal. It is very difficult for employers to show unfavourable treatment is proportionate when decisions are not evidence-based. It is also difficult to show a dismissal decision was reasonable without such evidence. Employers should set out and consult on a clear, evidence-based business case for restructure decisions and for the imposition of different working patterns.  Where evidence of the impact of a different working pattern is not immediately available, employers should consider a short term trial rather than making unfounded assumptions about what will and will not work. 

The decision is a reminder that the same level of reasoning, informed and backed by evidence, is needed where a restructure increases an employee's hours in the same way as it does when the process reduces them.