A Sheffield Employment Tribunal has ruled that an employee who worked for Capita was unfairly dismissed and indirectly discriminated against after her employer attempted to change her job share arrangement to a full-time role.

The employee, Mrs J McBride, was employed on a permanent part-time basis with Capita Customer Management Limited where she had worked since 1999 when it was known as Ventura, before it was acquired by Capita.

In 2015, McBride gave birth to her third child and went on maternity leave but shortly after the child became ill and in 2017 she submitted a statutory flexible working request to her line manager, citing the continuing difficulty with the health of two of her children.

That request was refused but in October 2017 her line manager told McBride that there was the possibility of a job share which she then accepted. 

However, McBride said that by December 2017 the job share arrangement began to be “diluted”. That was because her line manager gave McBride and her job share co-worker individual responsibility for separate projects and work streams so that there was no longer any shared responsibility for projects.

According to the Tribunal, during 2017, Capita Group was experiencing a “highly turbulent time organisationally and operationally” and implemented a turnaround programme for the organisation as a whole. McBride’s line manager told the Tribunal that against this background he had to review the make-up of his team to address the requirements of the new initiative. He felt all roles within his team would need to be carried out on a full-time basis to ensure all core business hours were covered. As such, he did not think a job share would be feasible because of the risks and problems he had “apparently observed previously”. The Tribunal added that there was no evidence of these risks and problems presented.

After attempting to seek alternative employment and faced with only the prospect of full-time jobs, McBride was made redundant. She then appealed her decision and subsequently presented her claim to the Tribunal on 28 November 2018. The

“The claimant believed that part-time/job share could work where project workloads were allocated appropriately,” Employment Judge Little said. “She pointed out that no concerns had been raised in terms of her performance or delivery or her ability to perform the role on a part-time basis. She also pointed out that she had been told that she delivered more in part-time hours than some people delivered fulltime.

Little added that “it seemed clear from the claimant’s pleaded case and from her witness statement that she was in fact contending that redundancy was a sham reason and that the real reason was either her inability to work full-time or her rate of pay.”

“Necessarily informed by the matters we have considered when looking at the indirect sex discrimination complaint, we find that the decision to dismiss was outside the reasonable band,” Little stated. “We conclude that a reasonable employer would have given the job share a fair trial period, respecting the detailed plans which the two senior job-sharing employees concerned had prepared and which plan presumably had at least tacit approval from the employer.”

“Further, a reasonable employer would not have reached the conclusion that the role worked most effectively “with full-time coverage” unless that reasonable employer was in possession of evidence which supported that observation or conclusion. A reasonable employer would not risk making such an important decision on the basis of impression and opinion unsupported by evidence. Whilst it would be unusual to find that circumstances which led to indirect sex discrimination did not also lead inexorably to a finding of unfair dismissal, we find that regardless of our finding in respect of the Equality Act complaint this dismissal was unfair,” Little said.