In the case of Miss L Fairclough v Forever 21 (UK) Ltd: 2400060/2018, the Employment Tribunal held that a policy that employees must work 40 hours per week amounted to indirect sex discrimination, awarding the claimant £15,000 in compensation as a result..
The facts in Fairclough v Forever 21 (UK) Ltd
Ms Fairclough worked for Forever 21 (UK) Ltd (“Forever 21”). She took a period of maternity leave and suffered from a period of post-natal depression. She was due to return to work from her maternity leave on 31 July 2017 and made an application for flexible working, asking to return to work for 16 hours a week at first. At first Forever 21 refused, stating that it would not amend its policy of requiring employees to work at least 40 hours per week.
In August 2017 Ms Fairclough submitted a grievance regarding the refusal of her application for flexible working, and in November 2017 a grievance hearing took place. The outcome of the grievance was that Ms Fairclough’s grievance was upheld and on 15 December 2017 the company relented and accepted her request for flexible working.
Ms Fairclough subsequently made a claim for indirect sex discrimination in the Employment Tribunal, arguing that the company’s policy of requiring her to work 40 hours a work placed her as a female at a substantial disadvantage as compared to males.
Forever 21 did not file a response to Ms Fairclough’s claims.
The decision of the Employment Tribunal (ET)
The Employment Tribunal upheld Ms Fairclough’s claim for indirect sex discrimination, holding that the policy that she work 40 hours per week placed her at a substantial disadvantage as compared to male workers. The Tribunal further held that Forever 21 could not show that the policy was a proportionate means of achieving a legitimate aim.
The Employment Tribunal awarded Ms Fairclough £15,000 in respect of injury to her feelings – the Tribunal held that the failure of the company to deal with her grievance in a timely fashion was symptomatic of its approach to her situation generally, and that this had exacerbated Ms Fairclough’s potstnatal depression and caused her much distress. The Employment Tribunal also awarded interest on this sum of £714.
Our solicitors’ views on the case of Fairclough v Forever 21 (UK) Ltd
Chris Hadrill, the partner in the employment department at Redmans, made the following comment on the case: “Employers must ensure that workplace policies do not place persons with a particular protected characteristic at a substantial disadvantage as compared to persons who do not possess that characteristic – a failure to do so may result in a successful indirect discrimination claim. Employers must also ensure that they deal promptly and thoroughly with responding to Employment Tribunal claims – failing to respond to a claim may result in default judgment being awarded to the claimant.”
The decision of the Employment Tribunal in Miss L Fairclough v Forever 21 (UK) Ltd: 2400060/2018 can be found here.