This article provides a short summary of Bev Gleeson’s successful claim of indirect sex discrimination (she also succeeded in her unlawful deduction of wages claim) in respect of her employer’s decision to deny employees on a career break a one-off £1,500 payment (which was paid to all other staff of a similar seniority). Of note is that the Tribunal accepted that the decision to deny eligibility to those on careers breaks affected more women than men and therefore placed women at a particular disadvantage.
Background
Ms. Gleeson has been employed by the Government Legal Department (GLD) since 2004. She holds the role of a Senior Lawyer. In March 2023, she took a 6-month career break returning in September 2023.
The terms of her career break were set out in a letter. This said that she would not be paid during the career break or expected to work but she would still be under some obligations to the GLD during it.
On 2 June 2023, the GLD made an announcement that “Ministers have agreed to allow departments to make a fixed payment of £1,500 to civil servants in delegated grades in recognition of [their] public service and the challenges of the cost of living.” Ms. Gleeson held a delegated grade.
On 23 June 2023, the GLD set out the eligibility criteria which said: “To be eligible for this payment civil servants…will need (1) to have been post on the 31st March 2023 and (2) still be in post on the date of the payment- 31st July 2023.”
In an accompanying FAQ document, the GLD said: “Those on maternity leave who have either been in post or on paid/unpaid mat leave on both 31st March 2023 and 31st July 2023 will be eligible for the payment. Those on sick leave who have either been in post or on paid/unpaid sick leave on both 31st March and 31st July 23 will receive the payment”.
In relation to career breaks the FAQs gave the following information: “You will need to meet both eligibility criteria described above [you will receive the payment]. If you were on career break on 31st March 2023 or are due to be on career break on 31st July 2023 you will not be eligible for the payment”.
In respect of her unlawful deductions from wages claim, Ms. Gleeson said that the email of 2 June 2023 gave her the right to receive a payment from this date and that she was still “in-post” as per the eligibility criteria despite taking a career break.
Of greater interest for the purposes of this article is that Ms. Gleeson argued that the decision to exclude employees on a career break from the payment amounted to indirect sex discrimination. Statistics were provided to the Tribunal which demonstrated that the GLD employed:
The statistic also demonstrated that the GLD had “a heavy skew towards women” taking career breaks. For example:
The GLD argued that the difference in numbers could be explained by the fact that it employed more women. However, the Tribunal looked at the percentages and found that:
Decision
Ms. Gleeson’s claim that she suffered an unlawful deduction from wages succeeded. The Employment Tribunal found that £1,500 became properly payable on 2 June 2023 and there was no lawful basis to exclude employees who were on a career break. It found that “in-post”, adopting its ordinary meaning, meant being employed by an employer. It found that Ms. Gleeson therefore met the eligibility criteria and that the FAQ document (which sought to exclude those on career breaks) was trumped by the eligibility criteria.
Ms. Gleeson’s claim of indirect sex discrimination also succeeded. The GLD accepted that the decision not to pay the award to staff on a career break was a provision, criterion or practice (PCP) and was applied to Ms. Gleeson and other members of staff. The question for the Tribunal was whether a greater proportion of women than men were placed at a particular disadvantage by this PCP. The Tribunal found that in 2023 (the relevant time), 30% more women than men were on a career break. They found that this difference was significant and the stats showed a difference each year (it was not a short-term event). The Tribunal therefore found that women were substantially more impacted than men by the decision not to award the payment to those on career breaks.
The GLD ran a justification defence, arguing that its decision to exclude staff on a career break from receiving the payment was a proportionate means of achieving a legitimate aim. It put forward numerous legitimate aims but the key aim on which it relied was the need to maintain consistency that those on career breaks did not receive pay. The Tribunal accepted this was a legitimate aim but it did not believe the decision was a proportionate means of meeting that aim, particularly given that this was a one-off exceptional payment and would not break the normal consistency, as desired.
Summary
The case is a useful reminder for employers to consider the impact of their policies and whether a particular group of people will be more greatly affected than others. Whilst equality impact assessments can be time consuming, they enable employers to consider potential issues before any decisions are made, consider alternatives and at the very least, demonstrate to the Tribunal that the concerns were properly considered from the outset. The GLD’s failure to demonstrate any such assessment appeared fatal to its defence in this case.
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