Mrs Starmer, who has a 2 year old daughter and who is expecting her second child, had reduced her working hours by 25 per cent when she returned from maternity leave last year. This would often involve her being away from home for 3 consecutive nights and caused her difficulties finding childcare. She therefore requested a further reduction in hours (to 50 per cent) under the flexible working provisions in the Employment Rights Act 1996 (as amended) (“ERA”), which were introduced last year. BA informed Mrs Starmer that she would need to work another 18 months on a 75 per cent working time contract before she could reduce her hours to 50 per cent. Mrs Starmer commenced proceedings on the basis that BA’s refusal to allow her to work part time (at 50 per cent of hours) amounted to indirect sex discrimination.

Relevant law

Under section 80G of ERA, an employer may only refuse on certain grounds an application requesting a change in hours, time or location of work for the purpose of enabling an employee to care for a child.

The employer may refuse such an application only on certain grounds which include:

(1) the burden of additional costs;
(2) detrimental effect on the ability to meet customer demand;
(3) inability to reorganise work among existing staff;
(4) inability to recruit additional staff;
(5) detrimental impact on quality or performance;
(6) insufficiency of work during the periods during which the employee proposes to work; or
(7) planned structural changes.

BA relied on grounds 1, 3, 4 and 5 for refusing Mrs Starmer’s application.

An employee has the right to complain to an employment tribunal that an employer has failed to deal with his or her request for flexible working properly or has rejected the application on the basis of incorrect facts. If the complaint is upheld a tribunal may order the employer to reconsider the application and may award compensation of up to 8 weeks’ pay. A tribunal may not order the employer to implement the employee’s request for flexible working.

Employment Tribunal’s decision

Mrs Starmer succeeded in her sex discrimination case against BA. The Tribunal did not find that BA had produced any compelling evidence that there was a threat to safety by granting part-time working. It also rejected the resource considerations upon which BA relied, (i.e. additional training costs and Mrs Starmer’s lack of availability for reserve cover for other pilots). BA appealed against this decision to the Employment Appeals Tribunal (EAT).

EAT decision

The EAT rejected BA’s arguments. It held that the Tribunal was entitled to conclude that the decision by BA not to allow Mrs Starmer to work part-time at 50 per cent of hours was a “provision, criterion or practice”, which had a “disparate impact” (i.e. it was to the detriment of a considerably larger proportion of women than men) and was not justifiable on the basis of the business reasons given by BA (as discussed above). BA intends to take the case to the Court of Appeal.

Employers should regard this case as a warning if they assume automatically that certain jobs are not suitable for flexible working arrangements. Depending on the circumstances, Tribunals may be unwilling to rely on the justification put forward by the employer for refusing the request.

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