Job share – a question of balance
Craddock v Cornwall County Council and Governing Body of Indian Queens CP School and Nursery, Employment Appeal Tribunal, 19 December 2005
Following maternity leave, Craddock, a primary school teacher, was interested in reducing her hours. She raised the question of part-time working with the school and ultimately put forward a proposal in respect of a job-share arrangement. The school raised a number of concerns, including the possible disruption to the school’s teaching system and the impact on the quality of education.
The school rejected Craddock’s request and her subsequent internal appeal. She brought a tribunal complaint alleging unfair constructive dismissal and sex discrimination.
At tribunal, the school argued that the particular circumstances of the school could not accommodate Craddock’s request and the arrangements for handover between the job sharers were inadequate – there would be repetition of communication and problems with liaison and joint planning. While the tribunal considered that these problems were not insurmountable, the reasons advanced by the school were found to be ‘cogent’ reasons. The tribunal dismissed Craddock’s claims. She appealed, arguing that the tribunal had reached its decision on very selective evidence.
The EAT allowed Craddock’s appeal. The tribunal had failed to carry out any balancing act between the discriminatory effect of the school’s action and the justification for that action, an approach which was fundamental to the claim. There was no ‘audit trail’ identifying that this balancing exercise had taken place.
The EAT commented that it was a glimpse of the obvious to say that employing part-time employees could be inconvenient in that it required an employer to make adjustments. Yet the failure to make such adjustments to allow for part-time posts denied society the services of a wider pool of potential employees. The claims will be reheard by a different tribunal.
Since April 2003, employees with young (or disabled) children have had a formal right to request flexible working and to have such requests considered seriously by their employer. In the last year, however, this issue seems to have become particularly high profile, with a number of recent decisions demonstrating a willingness by the courts to make judgments about the feasibility of flexible working, even in specialised jobs, such as pilots.
Employers need to take particular care therefore that requests are given genuine consideration and that an appropriate audit trail is available in support of the decision taken.