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Redundancy: employers should take flexible working arrangements into account when considering alternative roles

Tue 11 Apr 2017

The case of Fidessa Plc v Lancaster (EAT) is a reminder to employers that they should take any existing flexible working arrangements into account when consulting with employees about alternative roles in a redundancy situation.

In this case, Ms Lancaster had her first baby and went on maternity leave which ended in August 2013. Prior to her maternity leave ending, she submitted a flexible working request, which was granted. She returned on a part-time basis working four days a week from 9-5pm. While it was agreed there may be some flexibility around her finishing time, Ms Lancaster had to leave work at 5pm to collect her daughter from the nursery. In July 2014, Ms Lancaster was in early stages of pregnancy with her second baby. In August 2014, an issue arose concerning her working arrangements and it was necessary that some work had to be completed after 5pm. She agreed an arrangement to complete this work from home after 5pm. However, this arrangement was not always adhered to and she was required to stay at work after 5pm more often. In October 2014, her team underwent a restructure and Ms Lancaster was offered an alternative role. In that role, she would be required to stay at work after 5pm on a regular basis. Ms Lancaster expressed concerns about the need to work after 5pm. There was no other alternative vacancy. Ms Lancaster was made redundant on 25 November 2014.

Ms Lancaster brought a number of claims including unfair dismissal and indirect sex discrimination.

Whilst the Tribunal found that the redundancy exercise was genuine, it held that failing to design an alternative role to take account of an employee’s flexible working arrangements was indirectly discriminatory and made the dismissal unfair.

Indirect discrimination occurs where an apparently neutral ‘provision criterion or practice’ (PCP) puts an individual with a protected characteristic (such as sex) at a particular disadvantage. In this case, the PCP was the requirement to stay at work after 5pm. Whilst it applied equally to everyone, it put Ms Lancaster at a particular disadvantage because she was a working mother and had to leave at 5pm to collect her child from the nursery. The Tribunal found that such requirement creates a disadvantage more likely to be suffered by women, as they as a group are predominately required to undertake childcare duties and collect children from nursery after work. Failure to incorporate the flexible working arrangements into the alternative role being offered to Ms Lancaster was therefore found to be a further PCP and indirectly discriminatory. This was the position even though Ms Lancaster did not choose to apply for the alternative role on offer.

Ms Lancaster succeeded in her claims. The finding of discrimination rendered an otherwise lawful and genuine redundancy dismissal unfair.

For more information on this article please contact the Employment Team.    

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