Do you have to make allowances for the school run?
A teacher who repeatedly turned up late for work after taking her daughter to school has won an appeal at the Employment Appeal Tribunal (EAT).
This case of indirect discrimination and victimisation was brought by Ms Paula Bradley against the London School of English. She had worked there for 10 years as a freelance teacher. The claims arose because she found it difficult to make a start time of 8.45am because she had to take her child to school.
Although classes at the London School of English typically started at 9am, all employees were required to arrive 15 minutes before their first tutoring session, to prepare and meet with students. However, Ms Bradley argued this put her and other women, who are more likely to be primary caregivers, at a disadvantage.
She asked for a later start time of 9.30am but was told that because lessons normally started at 9am, she might receive less work.
In July 2015, a client complained that Ms Bradley had been between 20 and 30 minutes late twice in one week. The teacher acknowledged the complaint was justified and accepted she had a problem with timekeeping, which she found “unprofessional and personally distressing.”
The following year Ms Bradley’s daughter changed school, and this allowed her to arrive at the London School of English for 9am – but this was not always the case. Around this period, the amount of work available to her reduced although this was also attributed to a wider downturn in the school’s business. She asked to start work at 9.30am when she did have clients, so that she could have ‘breathing room’ in her schedule, but this request was rejected.
Bradley was offered a week’s work to commence on 11 July 2016, with a one-to one client. By 8.45am that day, she had not arrived or phoned in to work to say she would be late. She arrived about 10 minutes later but her manager was annoyed and they had a brief meeting to discuss it. She later sent an emails saying, “For the record I did not have an issue with you asking me if there was a problem with the traffic but with the way you spoke to me on my arrival at [work] today. You were gunning for me the moment I walked through the door at 8.52am without even saying hello or good morning or in fact anything.”
The original tribunal rejected her claim saying that 9am was “not an unusual or extravagant start time”. The judge added that the requirement for teachers to start at that time was proportionate to the aims of the business, particularly as the school catered to an upmarket audience and clients expected a certain degree of professionalism.
However, her appeal overturned that ruling and the judge found that the original tribunal had not adequately balanced the needs of the business against the negative impact on the mother and child. The case has been sent back to tribunal to reconsider the facts.
So where does this leave employers? This judgment might seem somewhat worrying and leave you with the view that female employees with childcare responsibilities can simply turn up late. But this case has not yet run to its conclusion and hopefully we will get more clarity when the case is reheard.
In the meantime, if as an employer you can demonstrate flexibility, it will put you in a better position than those employers who refuse point blank. Remember to use your flexible working procedures to deal with such requests and keep good records. If you have a compelling and legitimate business aim that justifies indirectly discriminatory practices, you need to make sure that you can show you have assessed the impact your decision may have on employees.
Posted on 26 Jul 2018