Blundell v Governing Body of St Andrew's Catholic Primary School

EAT: Langstaff J, Mr D Bleiman and Mr T Motture: 10 May 2007

The claimant, a teacher in a primary school, made a complaint of sex discrimination against the school and the head teacher, pursuant to section 1 of the Sex Discrimination Act 1975, on the ground that she had been treated less favourably because of pregnancy. She claimed that attempts to persuade her to accept "floating duties" rather than being assigned to a particular class, when she informed the head that she was pregnant, were to her detriment within section 6(2)(b) of the Act; that the head became unfriendly towards her; that the head failed to consult her as to her preference for class allocation for the forthcoming year while she was away on maternity leave; and that when she returned she was given a different class to teach, so that she did not return to "the job in which she was employed before her absence" as provided by regulation 18 of the Maternity and Parental Leave etc Regulations 1999. An employment tribunal dismissed her claim, finding that the head teacher's attitude was not for any reason connected with the claimant's pregnancy but because the reception class would be disrupted; that, had the claimant been consulted while on maternity leave, her class preference would not have been determinative of the class she would have been allocated, so that she could not be said to have suffered a detriment; and that, as the claimant was employed as a teacher and not as a teacher of a particular class, she was contractually required to teach any class allocated to her and there was no breach of regulation 18.

The claimant appealed.

The Employment Appeal Tribunal held:
(1) Treatment was not "on the ground of [a complainant's] sex" under section 1 of the Sex Discrimination Act 1975 if it was on some other ground that was not gender specific. It was important for the tribunal to make proper findings of fact from which to draw inferences as to the presence of discrimination, and, in the present case, the tribunal had made such findings so as to enable it to draw the inference that the cause of the head teacher's behaviour was the announcement of sudden impending disruption to a class. But the omission to consult the claimant when she was on maternity leave, though there was no certainty that she would have been allocated a class of her choice, was a detriment and less favourable treatment on the ground of her sex in that she had lost the opportunity of putting forward her choice and thereby possibly securing her preferred class.
(2) An employee’s contract of employment was not definitive when considering whether the employee had returned to the "job in which she was employed before her absence" for the purposes of regulation 18(2) of the Maternity and Parental Leave etc Regulations 1999, and the phrase "in accordance with her contract" in the definition of "job" in regulation 2(1) qualified only the "nature" of the work she was employed to do and not the "capacity" or "place" in which she was employed. The level of specificity with which "nature", "capacity" and "place" were addressed was likely to be critical and should be determined as a question of fact by the employment tribunal, having in mind both the purposes of the legislation and the fact that the Regulations themselves provided for exceptional cases. Where a position was variable, as in the present case, a tribunal was not obliged to freeze time at the precise moment its occupant took maternity leave, but could have regard to the normal range within which variation had previously occurred, and the post to which the claimant returned was the same post, if the level of specificity was properly to be regarded as "teacher", and was, as found by the tribunal, within the normal range of variability which the claimant could reasonably have expected.

The appeal was allowed in part.

Appearances: Naomi Cunningham (Kennedys) for the claimant; Beverley Sunderland, solicitor (Doyle Clayton, Reading) for the employers.