Earlier this year, Susan Given won her case in a Glasgow tribunal against her former employer, Scottish Power Plc, after they had refused her request for a job share. She was awarded pounds 35,000 in compensation, probably the highest such award for discrimination apart from the recent Ministry of Defence cases.
The Sex Discrimination Act 1975 provides for two kinds of discrimination: direct and indirect. The latter covers the situation where a requirement or condition applies equally to men and women, but a considerably smaller proportion of women can comply with it. To prove indirect discrimination, it must be shown that the requirement or condition is unjustifiable and that the woman suffers detriment as a consequence. For the purpose of claiming damages, it is important to show intention. If the indirect discrimination was unintentional, then no damages will be awarded.
In the context of part-time work, an employer's requirement to work full time will have an adverse impact on women because they, more usually than men, take on the responsibilities of looking after a family. Many claims have successfully been brought where a woman has shown that she has suffered detriment by being forced to resign, or to travel to take children to childminders, for example. Conversely, women who are obliged to take part- time work as a result of their child-rearing role may also successfully bring a claim of indirect or even direct discrimination.
An employer has a defence if he can show that the refusal to allow part- time work or job-sharing is justifiable. The usual test is to balance the discriminatory effect of the requirement against the reasonable needs of the employer. In order to win, an employer will have to persuade a tribunal that part-time work would present genuine operational difficulties.
In one case, a school refused to allow a teacher to take her badminton class at lunchtime (which would have fitted in with her home arrangements more easily) rather than after school hours. The school successfully argued that it was important to allow a longer period of time for the class. A tribunal will usually reject a policy decision that objects to part- time work, however, particularly where the employer is a large organisation.
Employers with an equal opportunities policy should not be counting their chickens. During the hearing of Mrs Given's claim, the tribunal looked closely at the employer's equal opportunities policy and found it wanting. Clearly, merely having a written policy in place will not get an employer off the hook. Any policy needs to be positively implemented, understood and applied by all. Certainly, any policy that has the blanket effect of ruling out job-sharing or part-time work is unlikely to find favour with a tribunal.
Scottish Power had allowed job-sharing in the past. The company argued that the policy was open to all, although evidence showed that in practice it had been open only to those below Mrs Given's grade. In order to identify whether there was a disproportionate impact on women, it was important to identify a "pool" comprising employees at a similar grade to Mrs Given to test the impact of the condition upon them.
What then is the remedy? The Sex Discrimination Act provides that a tribunal may make an order declaring the rights of the complainant and the employer in relation to the matter under complaint; it may also recommend that the employer take action within a specified period to reduce the adverse effect. Finally, it may require the employer to pay compensation if the discrimination is proved to be intentional. Such compensation will cover financial loss and injury to feelings.
Mrs Given was awarded pounds 5,000 for injury to feelings, taking into account her length of service with Scottish Power and the manner in which she was treated. She received an additional pounds 30,000, representing pounds 6,000 a year for five years, being the difference in salary between her pay with Scottish Power and with her new employer.
A request for part-time work or job-share should not be lightly rejected. Since the cap on sex discrimination compensation was lifted in 1993, ex- employees may now receive substantial awards of damages if their genuine loss is considerable.
The writer is an employment lawyer with the City firm Cameron Markby Hewitt.Reuse content