Can it still be indirect discrimination for an employer to require an employee to go to work regardless of childcare needs, even if the employer doesn’t actually penalise the employee for not complying?
Yes, held the EAT in Hughes v Progressive Support Limited.
The Claimant is a support worker who had been working a guaranteed minimum of set or 'considerate' hours agreed in line with her childcare needs. For a short period, the Respondent stopped offering the Claimant 'considerate' hours and only offered her hours in line with the Respondent's service needs, and indicated it might put her on a 'zero-hours' contract. If the Claimant did not work the hours offered, she faced no penalty, but lost pay.
The tribunal dismissed the indirect sex discrimination claim on the basis that by not imposing any penalty for not working hours offered, the Claimant had not been subjected to a 'PCP', the requirement to work particular hours.
The EAT overturned the tribunal's decision; the Respondent had imposed a 'PCP', the requirement on the Claimant to work the hours determined by the Respondent to get her full contractual hours. The tribunal failed to consider the impact of the requirement at the time, rather than the lack of consequences later, as well as the financial impact of losing hours. The Claimant was also told that she might be put on a zero-hours contract.
The EAT remitted to a different tribunal the questions of whether the PCP gave rise to a particular disadvantage to female employees, and whether there was objective justification.
Thanks to Ed McFarlane of Law at Work for preparing this case summary.
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