Mrs Rachel Walker v Middlesbrough Borough Council — 2020

Mrs Rachel Walker was employed by Middlesbrough Borough Council in the Teesside Pension Fund and had worked part-time since 2008 because of long-standing caring responsibilities for her parents. In the context of the pension fund's move into the Border to Coast Pension Partnership, the respondent created a new structure and the claimant applied for the Deputy Head of Pensions, Governance and Reporting Lead role on a part-time basis. The tribunal found that the role was well suited to her skills and experience and that she was the only applicant, but she would only accept it on a part-time basis because full-time work was not sustainable for her.

On unfair dismissal, the tribunal accepted that redundancy was the operative reason for dismissal but held that the dismissal was unfair under s.98(4) ERA 1996. The central defect was the respondent's failure to properly consider whether the Deputy Role, or any other alternative arrangement, could be undertaken other than on a permanent full-time basis. The tribunal found that the Committee had not actually decided that every post in the new structure had to be full-time, and that Mr Shiel closed his mind to the claimant's request. The grievance process did not cure that failure because Mr Orton and Mr Bromiley largely adopted Mr Shiel's position without making an independent assessment.

On indirect sex discrimination, the tribunal held that the requirement for the Deputy Role to be a permanent full-time post was a PCP which put women at a particular disadvantage because women were more likely than men to have caring responsibilities. It found that the claimant was personally disadvantaged because her caring responsibilities meant she could not accept the role on a full-time basis, and that the respondent had not established justification. The tribunal accepted that the respondent had a legitimate aim in managing the pension fund transition and maintaining resilience, but found that it had not shown the full-time-only requirement to be proportionate, particularly because it had not explored part-time working, job share, compressed hours, a trial period, or any other less discriminatory means. Although the claim was outside the primary limitation period, the tribunal extended time on a just and equitable basis.

The victimisation claim failed. The claimant's grievance alleging indirect sex discrimination was a protected act, but the tribunal found that the reference issue arose because Mr Orton believed she was seeking a wider employer's reference about her capabilities and attributes, which was outside the respondent's policy. The tribunal found that he did not decline to provide a basic reference and that, in any event, the refusal was not because of the protected act. Remedy was deferred on the successful claims and no monetary award was determined in this judgment.