Mrs J McBride v Capita Customer Management Limited — 2019

The tribunal upheld the claimant's indirect sex discrimination complaint. The respondent accepted that its requirement for operations improvement managers to work full-time, and for the role to be done by one person rather than as a job share, placed women and the claimant at a particular disadvantage. The only issue was justification. The tribunal accepted that the respondent's aim of operational efficiency, continuity and single-point accountability was legitimate, but found the means adopted were not proportionate.

In reaching that conclusion, the tribunal found that the respondent had not shown evidence that the claimant's job share had been given a fair trial or that the alleged operational problems had been raised contemporaneously. It found no documentary support for Mr Lovell's claimed concerns in late 2017, accepted the claimant's critique that the arrangement had been diluted rather than properly tested, and concluded that the rationale for full-time working was unsubstantiated opinion rather than evidence-based or reasoned judgment.

The tribunal also upheld the unfair dismissal claim. It found there was no redundancy situation in law because the work had not diminished and the new operations improvement manager role was substantially the same work, now to be done by three full-time employees rather than one full-time and two part-time employees. Having allowed the respondent to rely alternatively on some other substantial reason, the tribunal nevertheless held that dismissal for inability to return to full-time work was outside the band of reasonable responses. A reasonable employer would have given the job share a fair trial and would not have concluded that only full-time working was viable without supporting evidence.