Homeworking ban may be indirect proof of bias

Companies which ignore a mother’s need to look after her child may be found to be acting in a discriminatory manner

 

The Government’s Green Paper on work and parents suggests that there should be a statutory right to work reduced hours unless this causes harm to the employer’s business. As the EAT’s decision in Lockwood v Crawley Warren Group, 2000, EAT 1176/99, confirms, the existing law on indirect sex discrimination already puts the burden on employers to justify a refusal to turn down an application for reduced hours where this is made for child care-related reasons.

Lockwood was employed by Crawley Warren Group as an account executive/technician. She went on maternity leave in January 1998 and returned to work in September 1998. Initially her mother was willing to take over responsibility for looking after Lockwood’s baby in her absence but before Christmas Lockwood’s mother told her that she would be unable to continue to do this due to her own health problems.

As a result Lockwood prepared a letter of resignation which she gave to her manager on 18 December but when she met her manager, she suggested that, as an alternative, she should either be allowed to work from home or be given unpaid leave for a period of up to six months.

Lockwood’s manager refused to accept her resignation and suggested that she took two weeks paid leave to explore other options for child care. This proposal was unacceptable to Lockwood who resigned and brought a complaint of indirect sex discrimination under the Sex Discrimination Act 1975.

The employment tribunal, dismissing her complaint, concluded that she had not shown that her employer had imposed a requirement or condition on her and therefore her claim under Section 1(1)(b) of the SDA 1975 failed.

Allowing Lockwood’s appeal, the EAT ruled that the employer had indirectly discriminated against Lockwood by insisting on her working full time. The EAT took the view that “a request to work from home at one’s own expense is conceptually similar to a request to work part-time”. The EAT therefore sent the case back to the tribunal to consider whether the full-time work requirement was justified in the particular circumstances of the case.

Another thorny issue relating to maternity leave arose in GUS Home Shopping v Green and McLaughlin, (2000). Here the issue was whether the complainants were entitled to a loyalty bonus which was paid to their colleagues when their employer relocated from Worcester to Manchester.

Both complainants were on maternity leave at the time of the relocation but subsequently returned to work (although they were eventually made redundant). Both argued that they were entitled to receive the loyalty bonus. The company, however, refused to make the payments. The tribunal upheld their claim that the non-payment of the loyalty bonus amounted to direct discrimination under the SDA.

The EAT, dismissing the appeal, rejected the company’s argument that the loyalty bonus scheme was separate from the complainants’ contract of employment – payment being conditional on the complainants being at work during the relocation period. The EAT acknowledged that it might be possible to draft a separate agreement along these lines but held that the tribunal was entitled to conclude that in the present case this was “a special scheme within a contract of indefinite duration offering a special loyalty payment for those who continued with the contract until a specific date”.

Key points

·        It may be indirectly sexually discriminatory to turn down an application to work from home where this is made for child care related reasons.

·        Such an application is analogous to a request to work part-time and therefore the burden is on the employer to justify its decision to turn down such a request.

·        Relocation payments and loyalty bonuses are payable to staff on maternity leave.

 

By Anthony Korn, a barrister at 199 Strand Chambers

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