A teacher who repeatedly turned up late for work after taking her daughter on the school run has won an appeal at the Employment Appeal Tribunal (EAT).
Ms Paula Bradley brought indirect discrimination and victimisation claims against the London School of English, where she had worked as a freelance teacher since 2005. The claims arose from Bradley’s inability to make an 8.45am start time because she had to take her child to school.
Although classes typically started at 9am, all employees were required to arrive 15 minutes before their first tutoring session, to prepare and meet with students. However, Bradley argued this put her and other women, who are more likely to be primary caregivers, at a disadvantage.
Bradley asked for a later start time of 9.30am. She was told that because tuition typically started at 9am, she might receive less work.
In July 2015, a client complained that Bradley had been between 20 and 30 minutes late twice in one week. The teacher acknowledge the complaint was justified and accepted she had a problem with timekeeping, which she found “unprofessional and personally distressing.”
In 2016, Bradley’s daughter changed school, which allowed her to arrive at the London School of English for, but not consistently before, 9am. Around this period, the amount of work available to Bradley dropped – though this was also attributed to a wider downturn in the school’s business. Bradley asked to start work at 9.30am when she did have clients, in order to have ‘breathing room’ in her schedule, but this request was turned down.
Bradley was offered a week’s work to commence on 11 July 2016, with a one-to one client. By 8.45am that day, she had not arrived or phoned in to work to say she would be late.
She arrived sometime between 8.52am and 8.55am, which “annoyed” her manager. After a short meeting just before 9am, Bradley left, but knew there was someone available to cover for her client.
In the subsequent exchange of emails, Bradley told her employer: “For the record I did not have an issue with you asking me if there was a problem with the traffic but with the way you spoke to me on my arrival at [work] today. You were gunning for me the moment I walked through the door at 8.52am without even saying hello or good morning or in fact anything.”
Dismissing her claims, the initial tribunal, which sat in Central London, said 9am was “not an unusual or extravagant start time”. Judge Glennie added the requirement for teachers to start at that time was proportionate to the aims of the business, particularly as the school catered to an upmarket audience and clients expected a certain degree of professionalism.
However, Judge David Richardson granted her appeal, finding the original tribunal did not adequately balance the needs of the business against the negative impact on the mother and child.
He said: “The employment tribunal did not mention the disadvantage to [Bradley]... when reaching its findings.”
The case has been sent back to tribunal to reconsider the facts.
Andrew Willis, head of legal at CIPD HR-inform, said: “While this decision may, on the face of it, be worrying for employers who may now think that their female employees with childcare responsibilities are able to ignore designated start times, it is important to realise it is not the end of the story.
“Employers who can demonstrate that there is a real need for their designated start time will be in a strong position to defend this type of claim, however, the next stage of the process for this case may provide more clarity on the employer’s approach.”
Dan Pollard, partner at GQ Employment Law, added: “The employer here did the right thing by offering the flexibility that it could. Employers who demonstrate some flexibility are always in a better position than those who do nothing.”
But Louise Bloomfield, partner at DAC Beachcroft, warned: “An employer may have a compelling and legitimate business aim that justifies indirectly discriminatory practices but this will not be accepted by a tribunal unless a careful balancing exercise has been carried out that makes a real assessment of the seriousness of the impact that these practices may have on employees.”
The London School of English has been contacted for comment.