Does a provision, criterion or practice (PCP) that requires mothers to work weekends on a rota basis amount to unlawful discrimination at work? This is the question that the tribunal faced in the case of Shackletons Garden Centre Ltd v Lowe [2010].
Miss Lowe was a full-time cashier who worked at least five shifts a week, including weekends. Prior to her maternity leave, Miss Lowe indicated that when she returned to work she would no longer work full-time but would work part-time on fixed days instead. Shackletons stated that they would review the situation upon her return.
Weekend work
Shortly before her return to work, Miss Lowe notified Shackletons that she had arranged childcare for Mondays, Thursday and Fridays. She was informed by the company that she could work three days per week but on a rota basis and that a complete avoidance of weekend working could not be agreed because of business needs and to treat the workforce equally and fairly. As a result, Miss Lowe resigned and issued claims for constructive unfair dismissal and indirect sex discrimination.
In the first instance, the tribunal concluded that Shackletons indirectly discriminated against Miss Lowe. It held that the rota system put women at a particular disadvantage and that Miss Lowe resigned as a consequence of this indirect discrimination, which constituted a breach of the implied term of trust and confidence.
EAT decision on part-time hours and discrimination at work
Shackletons lodged an appeal with the Employment Appeals Tribunal on the grounds that the Employment Tribunal failed to make sufficient findings of fact on the issues of the claimant’s suffering individual detriment as a result of the application of a discriminatory PCP, and on the issue of proportionality to justify their conclusion that there was actionable indirect discrimination.
The tribunal in the second instance found that maximisation of the profitability was a legitimate aim, and understood that weekend working was particularly important to the business. Further, the tribunal also found that trying to avoid discrimination against other members of the team (including other working mothers) was a legitimate aim. Consequently, Miss Lowe’s claims were dismissed.
Great care and thought needs to be given when applying PCPs that could discriminate against other members of staff and it is essential to seek legal advice in this regard. For more information on this or any other employment issue contact our Employment Law team or call us on 0117 604 5000.
