Sex Discrimination: requirement to work full-time

A recent Employment Tribunal decision (in Thomas v Arts Council of Wales, Cardiff 17.06.09, ET1604301/08) usefully illustrates the difficulties an employer can get itself into when it requires a female employee to return to work full-time after maternity leave.  Unless it is objectively justified, a requirement to work full-time can be indirect sex discrimination. 

A common reason given by employers for the refusal of flexible working requests is the need to provide a service full-time.  Although this reason can be an objective justification – thus providing a defence to an indirect sex discrimination claim – it is not always the case.  To be objectively justified the requirement to work full-time must be a proportionate means of achieving a legitimate aim.  Under European case law, to satisfy the test of justification, the measures taken by the employer must correspond to a real need on the part of the employer, must be appropriate with a view to achieving the objectives pursued and must be reasonably necessary.

The Tribunal in this case was not convinced that the employer needed the claimant to be available full-time.  The Tribunal found that the delay which would be caused to a client by having to wait a few days until the employee was next at work was “of the same order of magnitude” as a client having to wait until Monday morning if an issue arose when the employer’s offices were closed at the weekend.  The Tribunal also rejected the employer’s argument that it would have found it difficult to recruit another part-time employee to share the role; the employer had not tried to recruit or even made enquiries about the availability of such staff.  The sex discrimination claim therefore succeeded.

The case is not binding upon future employment tribunals, but nevertheless serves to illustrate that establishing that a requirement to work full-time is objectively justified is not easy; hard evidence is needed to prove that an employer’s assumption that a service must be provided full-time is correct.  So for example, if your argument for refusing a part time working request is that it will be impossible to recruit someone to job share, you should at the very least have made enquiries with recruitment agencies to see if this is in fact the case.