The claimant commenced a second career break in 2009 which was extended a number of times and was due to end in January 2014. She was not permitted to return to her original post or to any alternative post, received no wages, and was given no work while remaining an employee of the respondent. The respondent argued that the claimant had accepted a contractual variation allowing her to be retained indefinitely without work, pay or Redundancy and Reorganisation compensation. It was argued, inter alia, that the operation of the career break policy amounted to unlawful indirect sex discrimination and that it had been incorrectly interpreted by the respondent. It was the respondent’s policy to permanently fill those posts left temporarily vacant by career breakers - but the tribunal held that this was not adequately communicated to the claimant and was misled about her position.

The tribunal held that unlawful sex discrimination existed and focused on the ‘provision, criteria or practice (PCP)’ adopted by the respondent through its career break policy and held that it disadvantaged the claimant. The tribunal made a concerted effort to settle the legal position in relation to the assessment of disparate impact of such a policy, but simply noted that the persons to whom the PCP applied (the disadvantaged pool) were 80% female compared to 65.54% in the advantaged group who were not affected. There was therefore a significant disparate impact against females. The authority of Bilka Kaufaus [1986] E.C.R. 1607 was cited by the tribunal since the respondent failed to justify the career break policy as ‘appropriate or necessary’. The tribunal was of the view that the respondent did not satisfactorily explain its failure to utilise temporary recruitment and in fact gave conflicting reasons for its eschewal of locum staff.

PRACTICAL LESSONS

The circumstances of this case i.e. a respondent statutory body subject to successive cuts in budget clearly may appear quite specific. However, the tribunal made clear that when any respondent employer adopts a ‘career break policy’ as a contractual term there must be clear communication to relevant staff as to its terms. Furthermore, an objective justification must be provided for the ‘provision, criteria or practice’ utilised in such a policy. In the present case 80% of those affected were female and, thus, the claimant had been disadvantaged personally by the application of the PCP adopted. A genuine ‘real need’ for the policy must be demonstrated, otherwise unlawful indirect discrimination will be held to have existed.