The Employment Appeal Tribunal (EAT) has held in Hughes v Progressive Support Ltd that requiring an employee to work whatever hours it chose to allocate to her amounted to a provision criterion or practice (PCP), even though she was not directly penalised for not being able to work those hours.
Ms Hughes is a support worker for adults with disabilities who needed help on a 24/7 basis. Following a period of maternity leave, she was allocated set hours of work that took into account her childcare responsibilities (considerate hours). However, on learning that she had been working elsewhere, her employer withdrew the arrangement. From 12 December 2018 until early January 2019, she was required to work whatever hours were allocated to her to meet the needs of the business, irrespective of her childcare commitments.
As Ms Hughes could not work all the hours offered, she ended up working less than she had when working considerate hours. Although her employer initially suggested that she should go onto a zero hours contract to resolve matters, in the end she was allowed to go back to working considerate hours.
Ms Hughes then lodged a tribunal claim for the period from December 2018 to January 2019, on the basis that her employer had applied a PCP, requiring her to work whatever hours were allocated to her (as opposed to giving her set hours) which amounted to unlawful indirect sex discrimination.
Section 19 of the Equality Act states that indirect discrimination occurs when:
- an employer applies a PCP which puts or would put those who have a protected characteristic at a particular disadvantage compared to those who do not have that protected characteristic
- the person with the protected characteristic is put at a disadvantage, and
- the employer cannot show that the PCP is a proportionate means of achieving a legitimate aim.
The tribunal found that Ms Hughes had not been subjected to a requirement to work the hours allocated to her because her employer had not imposed a penalty when she was unable to work them. As such, the company had not applied a PCP to her and dismissed the claim.
Ms Hughes first applied to the tribunal to reconsider their decision. When this was refused she appealed to the EAT.
Upholding the appeal, the EAT held that in order to be able to work the full hours to which she was contractually entitled, she was required to make herself available to work the hours allocated by the employer which did not allow for her childcare responsibilities. The fact she was not disciplined because she could not work those hours was irrelevant.
The tribunal had failed to take into account that Ms Hughes had lost out in terms of pay by not being able to work all those hours and had been threatened with the possibility of being moved onto a zero hours contract. The EAT considered that these amounted to imposing a detriment and that the PCP had been applied to her for the period in question.
The EAT did not determine if Ms Hughes was indirectly discriminated against and therefore remitted the matter to a differently constituted tribunal to determine whether the PCP put women at a particular disadvantage and if so whether that was objectively justified.
This case was heard around the same time as the case of Dobson v North Cumbria Integrated Care NHS Foundation Trust where the EAT held that employment tribunals should take into account women’s childcaring responsibilities when considering flexible working patterns. Employers will need to do the same.