A part-time employee has been awarded £24,000 in compensation after being dismissed via video call on one of her non-working days. The tribunal concluded that Ms Neill’s former employer, Dermalogica, had unfairly dismissed her, breached part-time workers’ regulations, failed to make reasonable adjustments, and indirectly discriminated against her on the basis of sex.
So, how can employers avoid inadvertently discriminating against part-time employees when going through the redundancy process?
Indirect sex discrimination claims
Statistically, more women work part-time than men, so part-time workers typically tend to be female. As a result, any claim for less favourable treatment on grounds of part-time status is also likely to give rise to an indirect sex discrimination claim.
In this case, Dermalogica’s aim was to reduce headcount and, as the only part-time worker, the employer deemed Ms Neill the logical choice for redundancy. However, she argued that the requirement to work full-time placed her at a disadvantage compared to men, as women are more likely to have childcare responsibilities, making full-time work more difficult. The tribunal accepted this argument and found that Ms Neill had been indirectly discriminated against on grounds of her sex.
Employers are responsible for ensuring equal treatment of all employees, so it’s important they understand how to uphold this when making redundancies. They should be especially careful when selecting part-time workers and ensure the decision isn’t based solely on working hours. If full-time working is deemed necessary, the rationale must be carefully considered – including whether it’s absolutely essential and how this can be evidenced.
Protected characteristics and reasonable adjustments
In this case, Dermalogica failed to make adjustments to the process that considered the disadvantages Ms Neill faced as a result of her mental health disability.
The tribunal found that reasonable adjustments would have included:
- Holding the meeting in the office rather than remotely.
- Arranging the meeting on a working day rather than a non-working day.
- Providing more prior notice of the meeting’s purpose.
- Allowing her to be accompanied.
Instead, the tribunal concluded Ms Neill was blindsided.
This case underlines that, during any HR procedure – whether redundancy or disciplinary – employers must consider whether the employee has a protected characteristic and make appropriate adjustments. Awareness of whether a disability is mental or physical will affect what, if any, adjustments are required.
Additionally, while not relevant in this case, employers should be cautious when scoring for redundancy. Absences related to protected characteristics, such as pregnancy or disability, should not be included, as doing so may give rise to discrimination claims.
Dismissing fairly
To dismiss fairly for redundancy, employers must consult over the proposal rather than present it as a done deal, and they must follow a fair and reasonable process. It’s critical that each step adheres to proper procedure to avoid the risk of legal challenge.
Equal treatment of part-time workers is not just important during redundancies – it’s essential throughout the employment relationship, including in relation to terms and conditions.
The wider legal context
There has been inconsistency in whether part-time status must be the sole or main reason for less favourable treatment for a claim under part-time worker regulations to succeed.
In a recent judgment, the Court of Appeal followed an earlier Scottish decision that part-time status must be the sole reason for the treatment. The Court of Appeal acknowledged this position weakens protection and expressed dissatisfaction. However, due to the requirement for UK-wide consistency, it did not depart from the Scottish ruling.
The Court of Appeal has stated that, if appealed, leave will be granted. Until then, claimants must show that part-time status alone caused the unfavourable treatment. This makes it harder to bring successful claims, though employers are still advised to approach any difference in treatment between part- and full-time staff with caution.
Key lessons
Looking ahead, employers should work on the basis that it’s best to offer all benefits afforded to full-time workers to part-time workers on a pro-rata basis.
Ms Neill’s case was complex, involving claims related to part-time status, disability, indirect sex discrimination, and unfair dismissal. Before implementing redundancies or disciplinary measures, employers must:
- Consider employees’ protected characteristics.
- Provide adequate notice and clarity around meetings.
- Take into account individual circumstances.
This will reduce the risk of procedural failings and potential claims for unfair dismissal or discrimination.
