Dialling J for job share

British Telecom PLC v Roberts EAT 2 May 1996 315/95
Puttick v Eastbourne Borough Council Brighton Industrial Tribunal 17 November 1995 COIT 3106/2

In 1984 the case of Home Office v Holmes 1984 IRLR 299 established the principle that the refusal to allow women to return to work from maternity leave on a part time or job share basis could amount to sex discrimination. Industrial Tribunals have revisited this area on numerous occasions since then and there are two recent decisions that are of interest.

The Employment Appeal Tribunal has held in BT v Roberts that two women who were refused a job share on return from maternity leave were not directly discriminated against on the grounds of sex.

The Brighton Tribunal had held that because the refusal followed directly from the fact of pregnancy and maternity leave there had been direct discrimination on the grounds of sex. They were therefore entitled to the special protection given to women following the arguments in Webb v EMO Cargo [1994] QB 718.

But the EAT disagreed saying that it is not the circumstances in which the requests for job share were made which is important but the reason why the requests were refused. The statutory right to return to work from maternity leave was to return to the old job on the old terms. BTÕs refusal of a job share may have been unreasonable but was not unlawful direct sex discrimination. The EAT stressed that childcare responsibility was not a circumstance unique to women and so it was appropriate to ask how a comparable man would have been treated. In the absence of any evidence that such a man would have been allowed to job share the claim of direct discrimination failed.

The EAT stated that the specific protection afforded by cases such as Dekker was limited to the protected period. In the UK the protected period is 11 weeks before and 29 weeks after childbirth for those with two years continuous employment and, under the Pregnant Workers Directive, 14 weeks for those with less than two years continuous employment. The EAT remitted the case to the tribunal to consider a claim for indirect discrimination where the applicants' case may fare better.

In Puttick the Brighton tribunal found, on similar facts to those in BT v Roberts, that the employer's refusal to allow a job share was indirect sex discrimination. The employers had applied a requirement that the employee worked full time; that requirement operated to Ms Puttick's disadvantage and it was a requirement which could be complied with by a considerably smaller proportion of women than men. The requirement for full time work was not justified.

These cases reaffirm the argument that except where a woman is pregnant or on "protected" maternity leave a claim for direct discrimination is unlikely to succeed unless it can be established that a comparable man would have been treated more favourably. Protected maternity leave will be either the 14 weeks under the Pregnant Workers Directive or the extended maternity leave which gives a right to return after 29 weeks under the Employment Rights Act.

The much more promising argument is to be found in a claim for indirect discrimination using the Puttick formula first set out in the case of Holmes. Although Holmes was called into question by the case of Clymo v Wandsworth London Borough Council 1989 IRLR 241, Clymo has rarely been followed since. In Clymo the EAT held that an obligation to work full time could not be regarded as a requirement or condition for the purposes of indirect discrimination.

On the facts of that case it was held that the requirement of full time work for Ms Clymo, a senior librarian, was not a requirement or condition but part of the nature of the job itself. The EAT said it was for management to decide whether the nature of the job required full time work.

But in Briggs v North Eastern Education & Library Board 1990 IRLR 181 the Northern Ireland Court of Appeal preferred Holmes to Clymo and stated that an employer who wished to deny discrimination when he insisted on full time work should show "objective justification" of that requirement.

As the numbers of part time workers continues to rise it will become increasingly difficult for employers to objectively justify a requirement to work full time. In the last 25 years the numbers of those in part time work has nearly doubled, jumping from 15 per cent of all employment in 1971 to 28 per cent in 1994.

The vast majority of those who work part time work are women. In 1994 nearly nine out of ten part time workers (86 per cent) were women and in 1991 one in three married women with children had a part time job.

Successful cases establishing the right to work part time have been fought in the gas industry, for teachers, for supermarket managers and in magazine and periodical production. Although it is necessary in each case to prove indirect sex discrimination, as more successes are recorded, the easier that task becomes.