After being fired via video on a day when she was not working, a part-time worker has received compensation of PS24,000. The tribunal found that Ms Neill was unfairly terminated by her former employer Dermalogica for violating part-time worker’s regulations, failing to make reasonable accommodations, and discriminating against her indirectly on the basis sex.
How can employers avoid discriminating inadvertently against part-time workers when they go through the redundancy procedure?
Direct sex discrimination claims
Statistically, part-time workers tend to be women. Any claim of less favorable treatment based on part-time status will likely also lead to a sex bias claim.
Dermalogica wanted to reduce its headcount, and as Ms Neill was the only part-time employee, it deemed her the logical candidate for dismissal. She argued, however, that having to work full time put her at a disadvantage in comparison to men because women are more likely than men to be responsible for childcare, which makes full-time employment more difficult. This argument was accepted by the tribunal, which found that Ms Neill’s sex had caused her to be indirectly discriminated.
It is the employer’s responsibility to ensure equal treatment for all employees. Therefore, it is important that they know how to maintain this when making redundant staff. When selecting part-time employees, employers should take extra care to ensure that the decision is not based on only working hours. If full-time work is required, it must be justified. This includes if the need for this is absolutely necessary and how to prove that.
Protection of characteristics and reasonable modifications
In this instance, Dermalogica did not make any adjustments to the procedure that would have taken into account the disadvantages faced by Ms Neill as a result her mental disability.
The court found that reasonable modifications would have included:
- Meetings should be held in person rather than via remote.
- Arrange the meeting for a day that is not a holiday.
- Notifying the purpose of the meeting in advance.
- Allowing her to accompany.
The tribunal found that Ms Neill had been blindsided.
This case highlights that employers should consider if an employee has a protected characteristic when deciding on any HR procedures, whether it is redundancy or discipline. They must then make the appropriate adjustments. The type of disability will determine if adjustments are needed.
Employers should also be careful when calculating redundancy, even though it is not relevant to this case. The absence of protected characteristics such as pregnancy and disability should not be included as this could lead to discrimination claims.
Dismissing fairly
Employers must be fair in their dismissal of employees for redundancy. They must not present the proposal as final and must use a fair, reasonable and consultative process. To avoid legal challenges, it’s important that every step is done according to the correct procedure.
It is important to treat part-time employees equally, not only during redundancies but throughout the entire employment relationship. This includes terms and conditions.
The wider legal context
It has not been clear whether the part-time status is required to be the only or primary reason for a less favorable treatment in order for a claim made under the regulations for part-time workers to succeed.
In a recent decision, the Court of Appeal affirmed an earlier Scottish ruling that the only basis for treatment must be part-time status. The Court of Appeal expressed its dissatisfaction with this position, which it acknowledged weakened protection. The Court of Appeal did not deviate from the Scottish decision due to the need for UK-wide consistency.
If you appeal, the Court of Appeal will grant leave. Claimants will have to prove that the part-time status is what caused the unfair treatment until then. It is therefore harder to make a successful claim, but employers should still be cautious about any differences in treatment between full-time and part-time employees.
Key lessons
Employers should consider the future and offer part-time employees all benefits available to full-time employees on a pro rata basis.
Ms Neill’s case was complicated, involving allegations of indirect sex, indirect disability, and unfair dismissal. Employers must first:
- Consider employees’ protected characteristics.
- Meetings should be announced and clarified in advance.
- Consider the individual circumstances.
It will also reduce the possibility of procedural failures, and claims for discrimination or unfair dismissal.
