Employee unfairly dismissed after job share was turned into full-time role, tribunal rules

Judge says business’s attempt to banish flexible working arrangements was unreasonable and ‘unsupported by evidence’

An employee with a job share arrangement was unfairly dismissed and suffered indirect sex discrimination after her employer tried to change her role to a full-time position, a tribunal has found.

The Sheffield Employment Tribunal (ET) ruled Capita Customer Management Services indirectly discriminated against Mrs J McBride, who was employed on a permanent part-time basis, after it failed to provide evidence when it made her job full time that doing so would ensure the role worked most effectively.

Instead, employment judge Robert Little said it appeared to the tribunal that Capita “endeavoured to distance itself from the part-time/full-time dichotomy”, and that a reasonable employer would have fully tested if a part-time or job share arrangement could fulfil the requirements of the role.

McBride’s employment began on 15 March 1999 with a company called Ventura, before her transferring to Capita Customer Management Services. She worked as head of quality and compliance before commencing maternity leave in April 2015.

She returned to work on 24 April 2017 to the position of implementation manager within a partnership deal she had previously worked on. On 28 September, McBride submitted a statutory flexible working request to her line manager, Mr Lovell, as she was having difficulty with the health of two of her children. 

The tribunal heard this request was refused, but in October Lovell informed her there was the possibility of a job share as another worker was returning from maternity leave. McBride accepted this proposal, and Lovell wrote to her on 2 November confirming she was to be employed on a permanent part-time basis on a different project. 

But McBride told the ET that, by December, the job share arrangement began to be “diluted” because Lovell gave her and the other employee individual responsibility for separate projects and work streams. 

The tribunal heard that during 2017, Capita Group was experiencing a “highly turbulent time organisationally and operationally”, and implemented a turnaround programme for the organisation as a whole. Lovell told the tribunal that against this background he had to review the make-up of his team to address the new initiative’s requirements.

He felt all roles within his team would need to be carried out on a full-time basis to ensure all core business hours were covered. As such, he did not think a job share would be feasible because of the risks and problems he had “apparently observed previously”, though the tribunal did not hear any evidence of such issues. 

On 30 April 2018, McBride was informed of the restructure and that all new roles would be full time only. She was invited to a consultation meeting on 2 May.

She felt the job share had not been adequately tested before the roles, responsibilities and workload were reorganised, and she did not feel the reasons given for not considering part-time working had been based on a fair or reasonable benchmark as she believed a part-time or job share arrangement could work if project workloads were allocated appropriately. 

McBride attended further redundancy meetings in May and June to seek alternative employment; however, she rejected all the positions offered on the basis that they were all full-time roles. A formal notice of redundancy was issued on 15 June.

McBride appealed against this decision, but the decision to go forward with her redundancy was upheld on 16 July. She served her notice period and her employment was terminated on 6 September.

She brought claims of unfair dismissal and indirect sex discrimination to the ET on 28 November.

In his judgment, Judge Little said a reasonable employer would not take the risk of making an important decision such as whether a role was effectively a full-time position on the basis of “impression and opinion unsupported by evidence”. He upheld the claims of unfair dismissal and indirect sex discrimination.

“We conclude a reasonable employer would have given the job share a fair trial period, respecting the detailed plans that the two senior job-sharing employees concerned had prepared and which plans presumably had at least tacit approval from the employer,” Little said. 

Andrew Willis, head of legal at HR-inform, said the ruling demonstrated to employers that the particulars of flexible working arrangements should be fully considered before a decision is made on their feasibility. “As seen here, if an employer feels that the job share situation is not working in their company, they should be prepared to provide valid business reasons for this,” Willis said. 

“Simply informing employees that they will no longer be able to job share without justification and not addressing their arguments against such a decision could quickly leave a company open to an unfair dismissal claim if the employees have the length of service.”

A Capita spokesperson said: “We are aware of the judgment and are considering our position.” 

McBride could not be reached for comment.