Hardys and Hansons Plc v Lax,
Court of Appeal, 7 July 2005
The Court of Appeal confirmed in this case that an employer’s refusal to permit the job-share of a full-time role was unlawful sex discrimination.
This can be justifiable in some circumstances, even if it has a disproportionate detrimental effect on individuals of a particular sex. This case reiterates what a tribunal will consider when deciding whether an employer’s potentially discriminatory decision (in this case, to reject a request for job-sharing) can be ‘objectively justified’ under the Sex Discrimination Act 1975.
Lax, a retail recruitment manager for a brewery company, requested to be allowed to work part-time/job-share on her return from maternity leave, but her request was rejected.
During her leave, a reorganisation of roles had taken place at the company, and some of Lax’s previous responsibilities were absorbed into a new, combined role.
Since she had confirmed that she was unable to return to a full-time position, Lax was given notice of dismissal on the grounds of the redundancy of her former role. The new position was then filled by a full-time employee.
Lax complained, among other things, that she had been discriminated against on the grounds of her sex.
The company accepted that a refusal to consider a job-share acted to the detriment of Lax, and that childcare responsibilities were such that the refusal would be to the detriment of a larger proportion of women than men.
It believed its decision was justifiable due to the nature of the role, which involved functions incapable of being split between two people.
But the tribunal disagreed. It found that, although the newly-created role could not be undertaken part-time, it could feasibly have been carried out by two job-sharers or two part-timers.
The company’s failure to consider this option was ruled unreasonable, and Lax succeeded at tribunal. She was awarded £60,000.
The decision on appeal
Appeals to the Employment Appeal Tribunal and the Court of Appeal were dismissed.
The company argued that the test of ‘objective justification’ under the Sex Discrimination Act 1975 should permit an employer a ‘margin of discretion’ or a range of reasonable responses in deciding whether to permit a job-share (ie room for manoeuvre within which the tribunal may disagree with the employer’s assessment, but cannot hold the employer’s assessment to be unlawful).
The court rejected this argument, saying there was no room for a ‘band of reasonable responses’ test, similar to that applied in unfair dismissal cases.
It repeated the accepted test that, when deciding whether an employer’s decision is ‘objectively justified’ and therefore not unlawful, it is the tribunal’s job to weigh up the real needs of the business against the discriminatory effect of the employer’s proposal.
This case serves as a reminder that a tribunal’s appraisal of whether a potentially discriminatory practice can be justifiable involves a detailed analysis of working practices and business considerations.
The court said this should include work systems, the practical problems which may or may not arise from job-sharing in a particular business, and the economic impact in a competitive world, which the restrictions may impose on the employer’s freedom of action.