did an employer’s refusal to allow an employee to reduce her hours and work on fixed days in order to facilitate childcare amount to indirect sex discrimination?

Yes, held the Employment Tribunal in Daly v BA CityFlyer

Mrs Daly (the Claimant) worked as an In-flight Business Manager (IBM) for BA (the Respondent). Her contract of employment provided for 37.5 hours per week ‘with a variable shift pattern as required by the business’. Her exact working pattern, per the contract, was ‘to be agreed with [her] manager’.

Initially, the IBM role was Monday to Friday. This changed in 2016 when the Claimant was required to work six-day weeks, including Saturdays and Sundays, with no set pattern of work.

Mrs Daly gave birth in July 2017 and was due to return to work from maternity leave in August 2018. Unable to find childcare to function in accordance with her work schedule, in June 2017 she applied for flexible working, specifically requesting an overall reduction of hours by 25% and 2 fixed days off per week. The tribunal noted she ‘repeatedly emphasized her willingness to be flexible in relation to the request’ and even proposed a trial period to see if the arrangement worked for both sides.

In August 2017 the Respondent rejected her request, relying on 3 clauses in their flexible working policy in doing so:

1. Inability to reorganize work amongst existing staff
2. Detrimental impact on quality
3. Detrimental impact on performance

The Claimant resigned, citing the rejection as a reason for resignation and subsequently submitted a claim at the employment tribunal for sex discrimination.

The Tribunal held that the PCP’s applied by BA, requiring IBMs to work full time hours and have no fixed working days, put women at a particular disadvantage when compared to men, citing Office for National Statistics data on gender in relation to childcare. The Tribunal also found that the Respondent didn’t have a valid defence to indirect discrimination in that the application of the PCPs was not a proportionate means of achieving a legitimate aim. The Claimant was awarded £38,000.

The facts of thiscase bring to mind the Landmark ruling in Ambacher and McFarlane v EasyJet where two cabin crew asked Easyjet, on return from maternity leave, for shorter 8 hour work days so they could express milk either side of shifts to avoid engorgement. Easyjet refused for similar reasons given by BA and the Tribunal found that the PCP of there being no restriction on the length of day a crew member might have to work amounted to sex discrimination. Daly and Ambacher should serve as a reminder to employers to seriously consider any flexible working application, particularly when it is made in relation to a protected characteristic .  

This blog was written by Jack Dooley, Paralegal at didlaw.