Two recent Employment Tribunal cases, described below, concerned claims for direct age discrimination and indirect sex discrimination. The cases demonstrate that an Employment Tribunal will seek to explore the reasons why a decision has been made by the employer, and allow claims to be successfully defended where those reasons can be established as non-discriminatory.
As you will be aware, there are different types of discrimination set out in the Equality Act 2010: ‘direct’ and ‘indirect’ discrimination, victimisation and harassment. The definitions of direct and indirect discrimination are set out below:
- Direct discrimination occurs where “because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
- Indirect discrimination is concerned with acts, decisions, practices, or policies which are not intended to treat anyone less favourably, but which in practice have the effect of disadvantaging a group of people with a particular protected characteristic.
(The protected characteristics in the Equality Act 2010 are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation).
Direct age discrimination
In the Employment Tribunal case of Jones v Care UK Clinical Services Limited , it was decided that a job applicant who was rejected for being overqualified had not been subjected to direct age discrimination.
Mr Jones had applied for the post of marketing services executive. After interview, he was not selected for the job. This was given to another candidate who scored better at interview. The candidate selected was 29 years old and Mr Jones was 51. The interview notes disclosed to the Employment Tribunal showed that Mr Jones had been considered as overqualified for the role, and that his expectations of development in the role could not be met by the business.
Mr Jones raised a claim that he was treated less favourably because of his age, as compared to the candidate selected who was much younger. The Employment Tribunal disagreed, and were satisfied that the business had shown that the reasons he had been rejected was because he was overqualified for the post.
Mr Jones did not, however, bring a claim for indirect age discrimination and the reasons for this are not clear. He may have succeeded if he had brought such a claim, and if his employer had been unable to objectively justify their actions (click here for our previous article discussing when discrimination can potentially be justified).
Indirect sex discrimination
In the Employment Tribunal case of Smith v Gleacher Shacklock LLP , it was decided that an investment firm’s requirement that a new mother work full-time was not discriminatory in nature as the needs of the business outweighed the minor disadvantage that the employee suffered by having to work full-time.
Ms Smith was an executive secretary at the investment firm. Most of her role was described as ‘predictable’, but there was an element that was ‘unpredictable’ where she would be required to assist with fast-moving deals. Ms Jones made a flexible working request when she returned after maternity leave. She wished to work a 4-day week, with one of those days working from home. This was so she could care for her child on Friday, and make childcare arrangements for the other days of the week. Her request was rejected because the firm said that it was vital that clients have a single point of contact, that the unpredictable elements of her role made it difficult to accommodate her request, and that it would put pressure on other members of the team who would have to cover her role on days she was not in the office. The firm did make a concession and allowed her to leave early on some days to be able to collect her child from nursery.
Ms Jones appealed the decision, and this resulted in her changing her request to a 3-day week, with a job share covering the other 2 days. This was also rejected as the firm said handing work back and forth would not be conducive to the needs of the business.
Ms Jones raised a claim for breaches of flexible working legislation and for indirect sex discrimination. Both her claims were rejected, and in particular the Employment Tribunal rejected her claim for indirect sex discrimination on the basis that Ms Smith had not suffered a particular disadvantage (evidence showed she was better off financially working full-time and using childcare services), and that the firm’s position was justified as the disruption caused to the firm by agreeing to her request would have outweighed the disadvantage to Ms Smith.
Both cases shown that the employer had kept good records of why reasons were made, and this undoubtedly assisted them in defending these claims. In particular, the indirect sex discrimination case goes against the grain of other decisions involving claims about flexible working requests from new mothers, so it shows that the evidence from the employers must have been very persuasive. Employers who are diligent about keeping good records about such employment decisions will be pleased by the outcomes of these cases. For those employers who have concerns about whether their records are adequate, there is no time like the present to review your practices and improve. It could save you money and time!
The compensation that can be awarded in successful discrimination claims is unlimited, so it is important for employers to be aware of this area of employment law, and take action to ensure that equal opportunities policies are in place and that staff are adequately trained.
Do note that both cases were at Employment Tribunal level only, and are therefore not binding on other Employment Tribunals. Most cases are quite dependent on their individual facts.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or en[email protected]).