Employment Update: Sex discrimination

21 June 2007

A policy that prevents staff who are ‘in a partner, family or emotional relationship’ from working together may not fall foul of anti-discrimination legislation, being justified where the need for such a policy outweighs any discriminatory effect that it may have.

In Faulker v Chief Constable of Hampshire the EAT considered whether it was a case of indirect sex discrimination for an employer to have a policy that partners were not allowed to work together.

Such a policy undoubtedly fell within the statutory definition of a ‘provision criterion or practice’. It might have a disparate impact on women but the Employment Tribunal which had originally heard this case had been wrong to suggest that, in deciding this issue, it need only look at the 6 or so employees (out of at least 5,000 in all) adversely affected by the policy. It was necessary to look at the whole workforce and it was a difficult issue to decide because the employer might not necessarily have accurate information on numbers within its workforce who were in such relationships. Where the proportion of the workforce affected was so small it might be difficult to find the necessary ‘disparate impact’ even though an individual employee might undoubtedly suffer a detriment e.g.in having to move work location in order to avoid working together with a partner.

In this case, the EAT did not need to decide that issue because the rule was in any event justified for quite clear and understandable policy reasons. In general terms, it was important that partners should not be a in a supervisor/subordinate relationship at work in order to avoid the risk of allegations of favouritism or undue influence. More particularly, the police force, like all organisations working with the general public, had to show the highest standards of integrity.

Points to note:

  • It is often difficult to assess whether any particular workplace policy may be having a ‘disparate effect’ on a particular group of employees and thus fall foul of discrimination law. Guidance from the Courts and Tribunals is complicated and confusing (we are currently awaiting a Court of Appeal decision in the case of BA v Grundy) but we shall be happy to advise on policy wording.

  • The ‘justification’ defence will succeed where the employer can show a real need for the policy in question but policies should be applied with a light touch where possible. Although the employee in Faulkner argued that previous occasions on which the policy had not been strictly enforced should count against the employer, the Court disagreed. It was in the employer’s favour that it had shown some flexibility in applying its policy and this did not prevent the policy from being upheld as being necessary and appropriate.

After maternity leave, an employee must be allowed to return to ‘the job in which she was employed before her absence’ or where that is notpracticable, ‘another job that is both suitable... and appropriate’ (Maternity and Parental Leave Regulations 1999). What does this mean?

In Blundell v St Andrew’s Primary School the EAT considered this question for the first time.

The case concerned a primary school teacher who complained that she had not been allowed to return to the ‘same job’ after her maternity leave.

Before going on maternity leave, the employee had been working as a reception class teacher. When she returned a year later, she was asked to work with another, older, class. The evidence was that the head teacher rotated her staff between classes but did usually try to keep a teacher in a particular role for two years. The employee had been in the middle of her second year as a reception class teacher when she went on maternity leave.

The EAT agreed with the Employment Tribunal that the aim of the relevant regulations was to provide continuity of employment for women returning from maternity leave. The terms of an employment contract did not provide a definitive answer to the question of what was the ‘same job’. The regulations required consideration of ‘the nature of the work... the capacity and the place in which she is so employed’. They also provided for exceptional cases where it was no longer practicable for the woman to return to the same job. In such a case, she would be entitled to another job which was both ‘suitable for her and appropriate for her to do’. There was no need to ‘freeze in time’ the precise moment when the employee went on maternity leave but the employer could have regard to the normal range within which variations to her work had previously occurred.

Point to note:

  • The only issue on which the employer failed in its defence of the claim in Blundell was that, while the employee was still on maternity leave, the head teacher had failed to consult her on her preference as to which class she should be allocated to in the forthcoming academic year. The evidence was that all other teachers were consulted in June as to which posts they would like in September, though none of them necessarily got the posts they asked for. Employers should remember that, in all management matters, employees on maternity leave, and those working from home or otherwise out of the office, must be treated