A freelance teacher, Mrs Bradley, has successfully appealed a finding by an employment tribunal that she was not subjected to discrimination by requiring her to arrive at work by 8.45am. Bradley had consistently struggled to arrive at the required time because of her childcare responsibilities and she argued that she had received less work as a result.
Bradley bought claims of indirect discrimination and victimisation against the London School of English (the ‘School’).
The School advertised that its courses started at 9:00am. The tribunal comments that tuition costs were relatively high but that reflected the nature of the service provided which was ‘up-market’. Bradley and other trainers were expected to arrive at 8.45am. Her evidence was that, due to traffic during the rush hour, she would arrive between 9.05 and 9.10am and on occasion, later. The School acknowledged this as an issue in early 2015. It highlighted that this did not provide a good impression, particularly on Mondays when most courses started and trainers were required to be in attendance when clients arrived on the first day. A client complained that Bradley had arrived late twice in a week. The School agreed that she should arrive by 8.45am on Monday but that she could work by 9.00am for the remainder of the week unless she was able to agree an alternative time with a client.
What was the alleged discrimination suffered?
Bradley alleged that she had experienced a downturn in the amount of work offered. When she was offered a week’s work, she arrived between 8.52 and 8.55am. She met with the School’s manager before 9.00am who was annoyed with her. She left and sent an email to the manager shortly thereafter complaining about the way she had been spoken to.
Bradley was in ‘employment’ within the definition in section 83 of the Equality Act 2010. This meant that she should not be subjected to discrimination as to the terms on which she is offered employment or by not offering her employment. Bradley argued that the School’s requirement that she arrive early for a 9.00am class at 8.45 was a requirement which placed her and women at a substantial disadvantage compared to men as significantly more women than men are responsible for childcare commitments. The tribunal agreed that she was placed at a disadvantage.
Could the School justify the requirement?
The tribunal then went on to consider the School’s justification for the requirement to arrive early. The tribunal accepted that a 9.00am start time was acceptable to most clients and it was beneficial to the School to offer this start time for its courses. The School’s aims were to, firstly, ensure a prompt and organised start to the class with sufficient preparation time and secondly, to allow time to arrange cover, if required. The tribunal held that these were legitimate aims. Bradley’s claims were dismissed.
Bradley appealed. The Employment Appeal Tribunal (EAT) held that the tribunal had not assessed the seriousness of the impact on women. It noted that requirements, such as this one, may have a serious effect, such as to prevent women from working altogether or limiting their access to a particular work place. The EAT remitted the case to the tribunal to consider the question of proportionality.
An assessment of proportionality involves the tribunal making a comparison of the impact of the requirement to arrive at the School at that time on the affected group (women) against the importance of the School’s legitimate aim. Conducting this balancing act will allow the tribunal to consider whether the requirement is an appropriate means of achieving that legitimate aim and is no more than reasonably necessary to do so.
We will have to wait and see what the tribunal decides but it will be interesting to see whether the requirement to arrive at 8.45am could be considered discriminatory, in the circumstances.
This article is not a definitive statement of the law. It is designed as a free update on the law at the time of publishing. It is not a substitute for legal advice on specific facts and circumstances. BakerLaw LLP and/or the writer accepts no liability or responsibility for reliance on this article and recommends that you seek independent legal advice on your specific circumstances prior to taking any steps.