THE INDUSTRIAL TRIBUNALS

CASE REF:  58/07

CLAIMANT:			Laura Webster

RESPONDENT:		Autometrics Systems Ltd

Constitution of Tribunal:

Chairman:		Ms P Sheils

Members:		Dr C Ackah
			Mr P McKenna

Appearances:

The Claimant, by herself.

The Respondent, by Mr Conor Hamill, of counsel, instructed by Alana Jones Solicitors.

RULING OF THE TRIBUNAL ON AN APPLICATION BY COUNSEL FOR THE RESPONDENT

The tribunal heard and received written submissions from the respondent’s representative and the claimant on the respondent’s application that the tribunal should rule, at the close of the claimant’s case, that there was no case to answer.  Each of these submissions was supported by references to the evidence given, the legislation, legal texts and case law.  The tribunal, having considered the submissions and case law to which it was referred and other case law, has concluded that the respondent’s application of no case to answer should be refused, for the following reasons.

The claimant’s application is that she was subject to indirect sex discrimination in the manner in which her request for flexible working was dealt with by the respondent.  Specifically the claimant claims that she was discriminated against on the grounds of her sex by the imposition by the respondent of the condition that she be available to attend the office (on her home working days) within at least 16 hours notice.  The claimant also contends that she has been indirectly discriminated against on the grounds of her sex by the stipulation by the respondent that she does not carry out any software development during those periods of time when she is working at home.  

It is useful to set out the legislative framework within which the claimant must bring her case.  This is contained in the Employment Equality (Sex Discrimination) Regulations (Northern Ireland) 2005, specifically at Article 4.

Article 4

(1)	In Article 3(2) of the 1976 Order (a) for sub-paragraph (b) (definition of indirect discrimination) substitute 

“(b)	He applies to her practice, criterion or provision which he applies or would apply equally to a man, but –

(i)	which puts or would put women at a particular disadvantage when compared with men,

(ii)	which puts her at a disadvantage, and

(iii)	which he cannot show to be a proportionate means of achieving a legitimate aim.”

In its analysis of the application of no case to answer at this point the tribunal has been asked to confine itself to considering whether the claimant has, in fact or law, brought herself within paragraphs (i) and (ii) above.

The tribunal considered the following cases 

Macmillan -v- the Ministry of Defence 2004 
Allonby -v- Accrington and Rosendale College (2001) IRLR 364, 
Jones -v- University of Manchester (1993) IRLR 218, 
Nelson -v- Carillion Services Ltd 2003 IRLR, 
London Underground Ltd -v- Edwards 1998, 
Smith -v- Greyfriars Tavern, EAT 2001,
Cheshire and Worrall Partnership NHS Trust -v- Abbot 2006, 
R -v- the Secretary of State for Employment ex-party Seymour- Smith and Perez (2) 2000, Chief Constable of Avon and Somerset Constabulary -v- Chew 2001.

The tribunal also considered the cases specifically on the point of there being no case to answer as noted in Harvey Division T and also the cases of

Boulding -v- Land Securities Trillium (Media Services) Ltd UK EAT/0023/06/RN;
Wiggin -v- RN Wooler and Company Ltd UK EAT/0542/06/MAA.

The claimant made a request under the Flexible Working (Eligibility, Complaints and Remedies) Regulations (Northern Ireland) 2003 to the respondent for a variation in her contract to enable her to care for her child.  The claimant’s claim for indirect sex discrimination arises out of the respondent’s response to that request.  

In this case the claimant’s request to work from home was to facilitate the breast feeding of her child.  The claimant stated that her home working would have been facilitated by the presence at home of a nanny but that she would have continued to breast feed her child on demand.  The claimant also stated that her working from home would have reduced her travel to work time and permitted her to spend more time with her child than if she were travelling to and from work.

The tribunal notes that the respondent did not challenge the claimant’s right to apply under the Flexible Working Regulations at the time she made her request, even though that request was made on the basis that the claimant wished to work from home in order to facilitate breast feeding on demand and to spend more time with her baby, albeit that there would also be a nanny present too.  

The tribunal has considered the wording of Article 3 of those regulations and does not accept the respondent’s submission that the claimant’s specific request is not covered by that Article, which permits a variation of the employee’s contract “to care for a child”.  This tribunal would be reluctant to conclude that those words do not cover the situation where a woman applies to vary her contract to work at home so that she may continue to breast feed her child in whatever circumstances.

The claimant requested that she should work from home at all times.  She stated at tribunal that this remains her preference.  The claimant indicated that she was not prepared to accept the respondent’s proposal in response to her request. 

The respondent refused the claimant’s request that she work from home at all times.  Instead, and after protracted discussions between the parties, the respondent offered an alternative proposal, that the claimant work at home three days per week and in the office two days per week.  This offered proposal was on the condition that, on those days the claimant worked at home she would respond to the respondent’s requirement to attend the office at 16 hours (at least) notice and that, on those days when she was working at home, the claimant would not do any software development. 

The thrust of the respondent’s submissions is that these were the conditions of the respondent’s offer to the claimant in acceding to her request for flexible working.  Accordingly the respondent submits that in these circumstances, where there has been no refusal to permit home working, the claimant should not be permitted to rely on adduced statistics identifying the gender breakdown of home workers.

The respondent further submitted that this case is about the requirements or conditions imposed by the respondent’s in relation to the length of notice and the nature of the work to be undertaken and that the tribunal should consider only evidence of the particular disadvantage, if any, these conditions impose on women.  The respondent submitted that there was no evidence before the tribunal that either the 16 hour notice requirement or the restriction on type of work to be carried out at home created a particular disadvantage to women. 

The respondent further submitted that their perspective of the claim, that is, as a software developer for the respondent with the respondent’s business needs, dictates the “pool” of workers for the relevant comparison under the legislation.  The respondent submitted that this pool was not the total female workforce or even that section of it working in ”computer and related activities but rather only those female workers who would or could be affected by the PCP proposed.  The respondent submitted that the claimant had failed to adduce any statistics or relevant evidence to demonstrate any such particular disproportionate disadvantage.

The tribunal does not accept that there is sufficient evidence at this stage for it to conclude that this claim is not about the refusal of a request for home working.  The tribunal is not satisfied at this stage that the conditions applied to the claimant did not amount to a refusal to the claimant’s request. 

The respondent submits that the claimant has failed to establish that women would be disadvantaged by the 16 hour notice requirement or that there would be any disadvantage to women flowing from the restriction not to do software development at home. 

The tribunal IS NOT satisfied at this stage that there is sufficient evidence to conclude that the specific conditions, that is, the 16 hour notice and the restriction on the type of work to be carried out at home, did NOT create a particular disadvantage to women. 

Both these conditions impose restrictions on the claimant as a home worker.  The statistics indicate that the majority of home workers are female.  It is logical therefore that any disadvantage flowing from a restriction imposed by an employer on home workers is more likely to have a disproportionate impact on women than on men.

Accordingly the tribunal refuses the respondent’s application of no case to answer. 

Chairman:

Date and place of hearing:		22 October 2007, Belfast

Date decision recorded in register and issued to parties: