I’m new to a part-time job and just coming to the end of my probation. The hours have gone up since I started. My boss says it’s not working and he wants a full-time worker and realises that due to childcare I won’t want to work longer. Therefore he is letting me go although my work is great. I said I could work full time if I worked from home. This was turned down. He won’t consider a job share or another part timer either. Is this indirect sex discrimination? They also don’t want to pay me my contractual one month’s notice.
There are two issues raised in your query. The first relates to your entitlement to notice pay and the second relates to whether the decision to terminate your employment at the end of your probationary period is discriminatory, due to your boss’s requirement for a full-time worker.
Your entitlement to notice will be governed by the provisions of your contract of employment. You do not specify that you have a written contract of employment, although you do refer to an offer letter. If that is the only document that you have to evidence the notice period applicable to your employment, then you would entitled to rely on that and request that they give you one months’ notice or pay you in lieu of notice. If you do have a written contract of employment then you should check any specific provisions relating to the probationary period, as this may allow for a lesser period of notice during the notice period. If you are unsure I would recommend that you take legal advice providing them with your offer letter and any contract, in order to determine your entitlement. You are also entitled to payment for any accrued but untaken holiday up to and including your termination date.
With regard to a potential claim for discrimination, the statutory definition of indirect discrimination is found in section 19 of the Equality Act 2010, under which A discriminates against B where: A applies to B a provision, criterion or practice (PCP); B has a protected characteristic; A also applies (or would apply) that PCP to persons who do not share B’s protected characteristic; the PCP puts or would put persons with whom B shares the protected characteristic at a particular disadvantage compared to others; the PCP puts or would put B to that disadvantage and A cannot show the PCP to be a proportionate means of achieving a legitimate aim.
A classic example of indirect sex discrimination is an employer requiring an employee to work full time, as in this case. This requirement could disadvantage women as a group, since women in society as a whole bear a greater part of domestic and childcare responsibilities than men and are more likely to have a requirement to work part time. Unless the employer can objectively justify the need for a full-time worker to do the job, the requirement could be indirectly discriminatory against a woman with childcare responsibilities.
The onus therefore is on the employer to show that they have an objective justification for that role to be dealt with by a full-time worker only. They may encounter some difficulties with this given the fact that he also refused to consider any other solution to the issue by refusing to consider a job share, another part timer, or greater flexibility with homeworking etc. They would have to demonstrate a very good business reason to insist upon the role requiring a full-time worker only.
We would recommend that you take full legal advice in respect of your prospective claims. You should bear in mind the strict time limits in bringing employment tribunal claims. You have three months from the date of the termination of your employment in which to commence proceedings in an employment tribunal, and you must, before bringing such proceedings, submit an mandatory online application for ACAS early conciliation, full details of which can be found on the ACAS website www.acas.org.uk.
*Sarah Turner assisted in answering this question.