SEX DISCRIMINATION

Hardy & Hansons plc v Lax: [2005] EWCA Civ 846

CA: Pill, Thomas and Gage LJJ: 7 July 2005

The applicant worked as retail recruitment manager for the employers, who ran a chain of managed and tenanted public houses. When she became pregnant the applicant requested that she be allowed to work on a part-time basis on her return from maternity leave, but the employers refused her request. While the applicant was on maternity leave roles within the employers' organisation were reappraised and the job of retail recruitment manager became redundant, some of its functions passing to the newly-created role of tenant support manager. Shortly before the end of her maternity leave the applicant informed the employers that she was unable to work full-time. The employers told her that there was no part-time role involving recruitment available, claiming that the role of tenant support manager could not be performed by two part-time employees on a job sharing basis, and dismissed her on the ground of redundancy. The applicant made a complaint of unfair dismissal and indirect sex discrimination contrary to section 1(2)(b) of the Sex Discrimination Act 1975 on the ground that the employers had applied to her a provision which would be to the detriment of a considerably larger proportion of women than of men and was to her detriment. The employment tribunal upheld the complaints, finding that the job of tenant support manager was capable of being shared and that the employers had not shown their refusal to be justifiable under section 1(2)(b)(ii) of the 1975 Act. The Employment Appeal Tribunal dismissed an appeal by the employers.

The employers appealed.

The Court of Appeal held:
When determining whether an indirectly discriminatory practice was objectively justified under section 1(2)(b)(ii) of the Sex Discrimination Act 1975 an employment tribunal was required to make its own judgment as to whether, on a fair and detailed analysis of the working practices and business considerations involved, the practice was reasonably necessary and not whether it came within a range of reasonable responses. In considering whether the tribunal had adequately performed that duty the appellate courts had to consider critically whether the tribunal had understood and applied the evidence and had assessed fairly the employer's attempts at justification. Although the tribunal had misunderstood some of the evidence and in some respects its reasoning lacked cogency, on an application of the correct test its decision should be upheld.

The appeal was dismissed.

Appearances: Andrew Clarke QC and Jason Coppel (Browne Jacobson LLP, Nottingham) for the employers; Brian Langstaff QC and David Massarella (Richard Hutchinson & Co, Nottingham) for the applicant.