A recent case in the Sheffield Employment Tribunal resulted in a finding of Unfair Dismissal and Indirect Sex Discrimination against Capita Customer Management Services.  They had inherited an employee via a TUPE transfer.  She had service going back to 1999 and had worked as Head of Quality and Compliance but for a period of maternity leave.

On returning to work, as a result of health problems with her children, she requested flexible arrangements with her line manager.  Her line manager didn’t feel able to agree to her exact request.  She was offered a job share with another returner from maternity leave.  After the line manager had agreed, it wasn’t terribly long before the individuals found that they were being given individual responsibility for separate projects and work-streams. This was described as a dilution job share arrangement.

The line manager gave evidence that it was a highly turbulent time in the organisation which led to him reviewing the make up of his team.  At this point, he decided that all roles needed to be done on a full-time basis. What became clear in the Tribunal case was that in making the judgement that all roles needed to be done on a full-time basis within the team, the line manager had no evidence to back up this assertion.  The employee argued that the employer had done nothing to test job sharing and sharing of responsibilities and workload. 

The Judge was quite scathing of the employer.  They felt that a reasonable employer would not make such an important decision as whether a role was a full-time position or not, on the basis of “impression and opinion unsupported by evidence”.  He felt that a reasonable employer “would’ve given the job share a fair trial period, respecting the detailed plans that the two senior job sharing employees had prepared and the plans at least had had tacit approval from the employer”.

Thus, if you are faced with a line manager insisting a role has to be done on a full-time basis, and that flexibility cannot work, you do really need to be testing them on that assumption.  What is their evidence? Will it be enough? It may be that they are making a reasonable argument, but you will only be able to show that by having tried part-time working and learning what the challenges and obstacles are in order to have sufficient evidence to reach a conclusion that ‘it doesn’t work.’