Almost every business requires its staff to arrive at work by a particular time every day, but there may need to be flexibility if discrimination is to be avoided. The Employment Appeal Tribunal (EAT) made that point in the case of an English teacher who was persistently late due to her daily obligation to take her daughter to school (Bradley v London School of English and Foreign Languages Limited).

There was no dispute that the freelance teacher had the status of a worker, within the meaning of the Equality Act 2010, and that the school where she taught was therefore under a duty not to discriminate against her. The school required teachers to arrive at work each day at 8:45am, in order to start classes at 9:00am. Due to the school run, she was frequently late.

The woman accepted that her lateness, which she found personally distressing, was unprofessional and she tried to make arrangements to deliver her daughter to school earlier. Her employer told her that most of her classes could be put back to 9:30am, but that would mean she would receive less work. Subject to negotiating a later start time with her pupils, she was still required to arrive at work by 8:45am on Mondays. Her acknowledged timekeeping problem led to student complaints and, ultimately, to an angry confrontation with her manager.

The woman's motherhood of a school-age child was a protected characteristic under the Act and she launched Employment Tribunal (ET) proceedings claiming that she had been subjected to discrimination
and victimisation.

She argued that the requirement to arrive at work at 8:45am was a provision, criterion or practice (PCP) that had a discriminatory impact on her and others in her position. The ET, however, rejected her claim on the basis that the PCP served the legitimate aim of the school to arrange a prompt and orderly start to the working day.

In upholding her challenge to that ruling, however, the EAT found that the ET had given inadequate reasons for its decision and had failed to address the issue of proportionality correctly. In considering whether the PCP was an appropriate means of achieving the school's legitimate aim, the ET had failed to perform the required comparison between the importance of that aim and the seriousness of the PCP's impact on the protected group. The matter was sent back to the same ET for reconsideration in the light of the EAT's ruling.

For help and advice contact Emma Louise-Hewitt, on 0808 166 8827.

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