Goodfellas badfellas?

Recent sex discrimination and unfair dismissal claims by female staff raise
questions about how the long-hours culture can be balanced with family life,
part-time or flexible working and equal pay. Through a series of real-life
scenarios, Charlotte Giller looks at conflicting approaches taken by tribunals,
and at ways in which employers can minimise potential liability

Scenario 1

Susan, a senior financial manager with the media giant JP Badfellas, has
reduced her hours to four days a week. She has reached an agreement with the
company that she will receive 90 per cent of her salary to reflect the

The reality of the arrangement, however, is that she is fulfilling the same
number of tasks and working the same hours as when she worked a full week, by
fitting more into her four days and doing a considerable amount of paperwork at
home. She approaches Badfellas’ remuneration committee and asks it to
reconsider her package on the ground that she should receive 100 per cent of
her pay.

Charlotte Giller comments: The remuneration committee should
investigate whether Susan is in fact performing the same tasks as before, and
whether she is working a full day at home. If she is, she may in effect be
working full time. Badfellas will need to be able to point to a significant
difference between Susan’s job and that of the rest of the management team to
justify the difference in pay.

If there are some tasks she is no longer fulfilling, and if she is not in
fact working a full week, Badfellas can argue that she should not receive 100
per cent of her pay. However, the issue should be investigated carefully and
legal advice sought before conclusions are reached, otherwise Susan may have
grounds for both a sex discrimination and an equal pay claim.

If Susan asks to return to full-time work and to 100 per cent pay, but to
work from home on Fridays, Badfellas must give careful consideration to the
idea. Tribunals are increasingly sympathetic to this kind of request. However,
in Aisling Sykes’ recent discrimination claim against City financial
institution JP Morgan (see Employers’ Law, February-March 2000 issue), the
tribunal in effect said the employer could demand hours as long as it liked in
return for Sykes’ high salary. Even so, it will be difficult for Badfellas to
argue that Susan is required to be in the office full time, unless it can point
to business reasons why her attendance is required throughout the week. (See
Scenario 2).

Scenario 2

Shona, a full-time advertisement promotions manager at Badfellas, employs a
nanny to look after her two young children. Her nanny asks to work part-time
and Jane agrees. She asks her manager whether she would be able to work three
days a week – the time her nanny is available. But her request is refused on
the ground that it will provide a lack of continuity in dealing with clients.

Shona then requests a job share, which is refused on the ground that the
rest of the department will have to be responsible for extra work. She brings a
claim for sex discrimination against Badfellas. What are her chances of

Charlotte Giller comments: Shona’s claim is for indirect rather than
direct sex discrimination – the requirement that she works full time is a
condition with which men can more easily comply than women and is not
"objectively justifiable".

In relation to the first element, the trend in the case law is that
tribunals accept that most part-timers are women and that men find it easier to
work full time because they have fewer caring responsibilities. Shona will have
to show, however, that she cannot comply with the requirement to work full
time. If she can afford to make other arrangements to cover her nanny’s absence
then Badfellas may be able to argue that she can comply with the requirement to
work full time. It will then be open to Shona to explain why this may not be
appropriate in her case, for example her children may have particular needs.

The question of objective justification is one of fact for the tribunal. The
Employment Appeal Tribunal’s decision in London Underground v Edwards, 1997,
ref?, presents a difficulty for employers. It held that LU’s operational needs
were not enough to justify the full-time working requirement and this approach
has often been followed by tribunals. It will therefore be difficult for
Badfellas to show this job can only be performed on a full-time basis.

But the tribunal that decided the claims brought by Aisling Sykes appears to
have held that the full-time requirement was justified, and that the onus was
on Sykes to get her childcare in order. This decision appears to go against the
trend. It suggests that where female staff are senior and highly paid,
employers may successfully argue they should employ nannies to care for their
children. In the past, employers would have been advised against challenging
the propriety of an employee’s personal choices in this way.

This is a complex area, however, and Badfellas should seek specialist
advice. In order to avoid more claims like this, it should review its equal
opportunities policy, particularly in relation to homeworking and job shares.

Scenario 3

Diane, an account executive, tells her manager she is pregnant and the
following week her manager proceeds to hire a replacement. Diane has not
planned to begin her maternity leave for another six months but the replacement
starts in six weeks. She is not consulted about the replacement and there is no
discussion about whether she plans to return to work. She makes a complaint to
Badfellas’ senior management. How should this be handled?

Charlotte Giller comments: Simplified rules came into force dealing
with maternity leave on 30 April. Badfellas should familiarise itself with
these, and reassure the employee that these rules will be observed.

An employee who returns to work after taking ordinary maternity leave of 18
weeks is legally entitled to return to the same job on the same terms and
conditions as if she has not been absent, unless a redundancy situation has
arisen. The fact that Badfellas is lining up a replacement to take over Diane’s
duties indicates in this case that she is not redundant.

If she is dismissed during maternity leave or is not given her job back at
the end of her maternity leave, or her terms and conditions are changed, she
will be entitled to make a complaint of unfair dismissal and sex discrimination
to a tribunal, regardless of her length of service.

After extra maternity leave – a period to which staff are entitled after one
year’s service and which runs from the end of ordinary maternity leave up to
the end of the 29th week, beginning with the week in which the baby was born –
an employee is entitled to return to work to the same job, or if that is not
reasonably practicable, a similar job. The new job must be suitable and
appropriate for the employee and the terms and conditions of employment must be
no less favourable than those of her old job.

Although Badfellas may wish to discuss the return to work as soon as
possible, Diane is not legally obliged to tell them whether she is planning to
return to work until 21 days before she returns. Badfellas should assume she is
returning as normal and arrange the appropriate cover during her absence – and
this should be done in a sensitive way.

Scenario 4

Joe, a junior designer, has asked to work four days a week instead of five
to help care for his young daughter. His wife Annie is the main breadwinner and
wants to return to work full time. She earns £6,000 a year more than her
husband. How should Badfellas deal with this request?

Charlotte Giller comments: If the company already offers female
employees the opportunity to work part-time so they can fulfil their childcare
responsibilities, Joe should be treated in exactly the same way, or he may have
grounds for a sex discrimination claim. Badfellas should bear in mind the
factors considered in Scenario 2.

The employer should also bear in mind that, under the Employment Relations
Act 1999, Joe has the right to take a reasonable amount of time off to deal
with certain unexpected or sudden emergencies and to make any necessary
longer-term arrangements (this right does not include an entitlement to pay as this
is left at the employer’s discretion); and the right to take 13 weeks’ unpaid
parental leave, which is to be taken no later than his child’s fifth birthday.

Parental leave can only be taken in blocks or multiples of one week; Joe
must give his employer at least 21 days’ warning and can only take four weeks’
parental leave in any one year.

Like all employers, Badfellas is likely to receive requests from an
increasing number of men to take time off for domestic reasons and should
therefore be familiarising itself with the new rules and reviewing their
policies on this.

Charlotte Giller is a solicitor in the employment department of Bird
& Bird

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