Keating v WH Smith Retail Holdings Ltd - Indirect sex discrimination

An employment tribunal has upheld a claim for indirect sex discrimination and constructive unfair dismissal brought by a working mother, who had been required by her manager to start working weekend shifts, despite her lack of access to childcare at the weekend.

LAW

Section 19 Equality Act 2010 (EqA) Indirect discrimination – 

(1)A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. 

(2)For the purposes of subsection (1), a provision, criterion or practice (‘PCP’) is discriminatory in relation to a relevant protected characteristic of B's if: 

(a)A applies, or would apply, it to persons with whom B does not share the characteristic, 

(b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, 

(c)it puts, or would put, B at that disadvantage, and 

(d)A cannot show it to be a proportionate means of achieving a legitimate aim. 

Malik v BCCI 1997 

This case sets out the legal test for determining a breach of the implied term of trust and confidence, in that neither party will, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and employee. This requires an objective assessment, having regard to all the circumstances. 

Western Excavating v Sharp 1978

The correct test for constructive dismissal was set out and established in this case as follows: 

Was the employer in fundamental breach of contract? 

Did the employee resign in response to the breach? 

Did the employee delay too long in resigning i.e. did he affirm the contract? 

FACTS 

The claimant was employed as a shop assistant for the respondent since 2015, until her resignation in October 2018. At the end of July 2018, her manager announced that weekday staff members would need to work, on a rota basis, one weekend day a month. This was as a result of budgetary constraints and the departure of weekend only staff. 

The claimant raised on a number of occasions that she had sole care of her 8-year-old daughter. When she was scheduled for the Saturday shift, she once again raised this with her manager, who told her it was for her to arrange a swap is she was not able to work it. The manager did not attempt to try and find any other solution for her. This shift ultimately was not swapped, and as a result the claimant had to bring her daughter to work with her, on the instruction of her manager. 

The next time she was scheduled to work, she again told her manager she had no childcare. The manager expressed frustration with this, and would not remove the shift as he was concerned others would want the same treatment. Despite the manager promising to look into this, nothing more was said on the matter and the claimant resigned a week later. 

EMPLOYMENT TRIBUNAL (ET)

The ET were critical of the manager's “disinterest” in helping this employee with the obvious problem of her childcare, despite being aware that she had no other option but to bring the child with her to work. They also found his actions to be a “…surprising neglect of…duty”,

The ET went onto note that the imposition of this practice put women at a significant disadvantage, as statistically they were more likely to be primary or single care givers to children, and there is a noteworthy lack of childcare options at weekends, even in school term time. As such, they found that these actions amounted to indirect sex discrimination. 

In relation to the constructive unfair dismissal claim, the ET concluded that that the abject failure to have a proper regard for the claimant’s childcare issues acted to “…destroy or seriously damage the relationship of trust and confidence between the employer and the employee.”. The result of this breach of the implied term of trust and confidence was the claimant’s resignation, and therefore the ET found that this was a case of constructive unfair dismissal. 

Note for employers 

The ET in this case pointed out there was either a “…casualness and/or lack of HR support for Mr Cruickshank, alternatively inadequacy of diversity training. There was no diversity and inclusion policy in the bundle or training records of managers.”. Impliedly therefore the ET was of the view that, had the employer had such a policy in place, and trained their staff in diversity and inclusion, this a) would not have happened and b) would have provided the employer with a stronger defence at tribunal. As it was, the manager in this case clearly acted unreasonably, and in a way that had not only a discriminatory effect but also went to the core of the contract with the claimant.

This case highlights how essential it is for employers to ensure they have adequate policies and procedures in place, and that their managers have thorough and regular training on this. This claim and subsequent compensation (£25,558 in total) could have been avoided had they done this, making it an expensive lesson to learn.

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