Flexible working and discrimination

Harmajinder Hayre reports on a recent Employment Appeal Tribunal case involving a claim of indirect sex discrimination brought by a teacher at a school for children with special educational needs.

The case of Dutton v The Governing Body of Woodslee Primary School & Anor concerns an appeal against a claim of indirect sex discrimination. The Employment Appeal Tribunal (EAT) allowed the appeal and remitted the case to a fresh Tribunal.

Ms Dutton was a teacher in a school for children with special educational needs who required stability and continuity. She requested reducing her working hours from five days to four days, following a period of maternity leave.

The school refused this request on the basis that the children needed the stability of one teacher and the change suggested would confuse their routine by providing two different teachers.

Ms Dutton lost her initial claim for indirect sex discrimination. Whilst the Employment Tribunal (ET) recognised that working a full five-day week placed her and other mothers at a disadvantage, it was also accepted that her employer had demonstrated a legitimate aim when refusing her request, which was the need for stability and continuity. However, when considering whether or not the PCP (Provision, Criterion or Practice) was a proportionate means of achieving a legitimate aim, whilst recognising it was a difficult case, the ET held that the employers had been proportionate in their refusal and the claim was dismissed.

The EAT allowed the appeal, finding that the ET's decision was inadequately reasoned and that the ET had failed to provide sufficient detail in reaching its decision, making it difficult to accept their decision in this case. They also found that little consideration had been given to the fact that there had been no adverse impact in relation to the claimant's absence while on maternity leave.

There was also no evidence in the ET's reasoning that they had balanced the needs of the employee and the needs of their employer in terms of their duties to the vulnerable children in their care. This made it difficult for the EAT to understand why the ET came to the conclusion they did and led them to conclude that this judgment could not stand.

The EAT held that the only fair outcome would be to remit the claim to a fresh ET to start again.

Comment

An employer, when refusing flexible working requests, must consider whether refusal of such is a proportionate means of achieving a legitimate aim - for example, in this case, the need for stability and continuity. If it is not, an employer may be open to claims of indirect discrimination.

Harmajinder Hayre is Executive Partner in the Leeds office of Ward Hadaway. She can be contacted on 0113 205 6712 or This email address is being protected from spambots. You need JavaScript enabled to view it..