Hughes v Progressive Support Ltd (Sex Discrimination - Indirect discrimination) [2021] UKEAT 0195/20/1305

Appeal against the dismissal of a claim of indirect sex discrimination. Appeal allowed.

The Respondent provides support services to adults with disabilities who require assistance on a 24 hour a day, 7 days a week basis. The Claimant was employed by the Respondent as a Support Worker, under a contract that guaranteed her a minimum number of working hours. After the Claimant returned to work following a period of maternity leave, the Respondent had agreed that she could be allocated hours of work that took into account her childcaring responsibilities ("considerate hours"). After the Respondent became aware that the Claimant had been working elsewhere when it had understood she was unable to work due to her parental responsibilities, the considerate hours arrangement was withdrawn and, from 12 December 2018 until early in January 2019, the Respondent allocated hours to the Claimant as required by the needs of the service and without regard to her childcare commitments. The Claimant lodged a claim with the Employment Tribunal, however, in respect of the period for which this accommodation had been withdrawn; she claimed that the Respondent had applied a provision, criterion or practice ("PCP") to her, requiring her to work whatever hours were allocated to her, and that this amounted to unlawful indirect sex discrimination. Both parties then agreed her working arrangements so this hearing only related to the period from 12 December 2018 to January 2019. The claim was dismissed on the basis that the PCP alleged had not been applied to her. The ET considered that the evidence demonstrated that the Respondent sought to consult with its employees in the application of its general "24/7" policy and it had not subjected the Claimant to any sanction when she was unable to work the hours offered to her during the period in question; in the circumstances, she had not been subjected to a requirement to work the hours allocated to her (which was how she had defined the PCP in her claim). The Claimant appealed.

The EAT allowed the appeal. The application of the PCP (as defined in the Claimant's claim) had not been put in issue by the Respondent and the ET had been wrong to determine the case against the Claimant on this question without giving her an opportunity to respond; it had thereby denied the Claimant a fair hearing. In any event, on the ET's findings of fact it was clear that it had accepted that the PCP had been applied to her for the period in issue: in order to work the guaranteed minimum hours to which she was entitled under her contract, she had been required to work whatever hours were allocated by the Respondent, as opposed to hours that took into account her childcare responsibilities. The ET had erred in looking at the matter retrospectively (as to whether the Claimant had been subjected to any later sanction for not working all the hours offered by the Respondent) but, in any event, it was apparent that the Claimant had lost out by not being able to comply with the requirement to work the hours allocated. Moreover, as the ET had also found, when the Claimant was unable to meet that requirement, the Respondent had suggested that she might move to a zero-hours contract, thus losing her entitlement to guaranteed minimum hours. On the basis of the facts found by the ET, the only permissible conclusion was that a PCP had been applied to the Claimant from 12 December 2018 until early January 2019 as alleged in the ET1. The matter would need to be remitted to a differently constituted ET for determination of the remaining issues relating to disadvantage and objective justification.

Published: 06/07/2021 11:45

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