Is a four day week skiving from work? Employment law

Mother accused of ‘skiving’ for working four-day week faced sex discrimination, ET tribunal ruled.

A trainee accountant who was accused of “skiving” by her manager after an agreement that she would not work on Fridays was discriminated against, a tribunal has ruled.

Holly Grant, who had two young children, was also told by her manager that she “might as well not bother working at all” and that succeeding in her role while working under the four-day week arrangement would be challenging, the Reading tribunal heard. You can read the full judgement here Reading tribunal

The ET said the comments would not have been made to a man with childcare responsibilities and were based on “an underlying assumption that men do not have the same level of child caring responsibility as a woman in the same position”.?

One needs to read the fullness of the claimants case to get a proper feel of the case. \However parts of the case is said to have the following background

the tribunal found Grant’s sex had a “significant influence” on her dismissal by the respondent. It said that if a man’s hours were reduced by agreement at the outset of his employment, the issue of childcare responsibilities would “fade away and not remain a live and ongoing concern for the respondent”.?

Grant’s complaint of direct sex discrimination was upheld, with the remedy to be decided at a later date.

Background

Grant was hired as an apprentice by Buffery & Co, a small family-run accountancy firm, after an interview on 26 April 2023.

Founded by Mark and Karen Buffery, director and company secretary/office manager, the company had employed 15 apprentices before Grant, mostly school leavers. Grant was the first apprentice to have childcare responsibilities.?

During her interview, Grant mentioned having children and that her husband would be taking a sabbatical from work to assist with childcare.?

Katie Thompson, the claimant’s line manager and trainer, later warned the Bufferys against “hiring someone with children”, expressing concern that Grant would not have time to complete her work. Speaking to the tribunal, Thompson said she had raised it as an issue in the same way she would have for an apprentice who rowed regularly or had a time-intensive hobby.?

Despite this, Grant was offered the role the following day, initially on the company’s standard working hours: 9am to 5.30pm from Monday to Thursday and 9am to 1.30pm on Fridays.

On 3 May, Grant emailed the respondent to request reduced working hours for the immediate start of the role, adding that her husband would keep his job until her position with the respondent was more secure.?

On 5 May, it was agreed in writing that the claimant would work 9.30am to 4.30pm Monday to Thursday on a trial basis.?

Shortly after Grant began her employment, the company told her she could work from home on Fridays to accommodate her lengthy commute and family circumstances.

The respondent argued Grant was expected to be working or undertaking training on Fridays and that she had wrongfully not been doing so.

However, the tribunal accepted the claimant’s argument that she was not required or expected to work on Fridays for the time being. She had a mutual understanding with Karen that, while in future she would use Fridays to complete training at home, she was not yet obligated to do this.

The tribunal found it was “implausible” that neither Thompson nor Karen would raise the issue of Grant failing to complete training if that was the expectation, as both had access to her timesheets and Thompson was monitoring her work.?

The respondent retrospectively took issue with Grant’s quality of work to “justify its decision to dismiss”, the tribunal found. While the respondent was accommodating of other apprentices who were struggling, there was never a direct conversation with the claimant herself about her productivity, it said.

During her first week, Thompson told Grant that it would be difficult for someone with children to be able to successfully work for the respondent. She also said to the claimant that she was “skiving” off work, in reference to the Fridays she spent at home. The tribunal heard she also said the claimant “might as well not bother working at all”, though Thompson denied this.

While Thompson said the comments were made in an atmosphere of mutual “banter”, the panel found that even though the claimant may have joked along, she was just one week into her apprenticeship and knew they were made in connection to her adjusted hours and childcare responsibilities.?

On 20 July, the Bufferys had a review meeting with the claimant, in which they mostly discussed how the claimant would juggle her childcare commitments with her work.?

The tribunal heard the respondent had concerns about Grant’s “attitude”, believing she was too confident about her ability to complete her work and studies successfully and that she did not feel the need to study outside of office hours.?

Karen told the tribunal: “It came across from that meeting that Holly thought she was doing brilliantly and that she was happy.” While she “clearly” had doubts about this, according to the panel, these were not expressed to the claimant.?

The Bufferys accepted they did not raise concerns they mentioned to the tribunal – for example, poor productivity, competency, attitude and her impact on office dynamics – or give Grant an opportunity to respond to them. The tribunal was not convinced by Mark’s explanation that they did not think they had to voice their concerns or give any reason for their dismissal because it was within Grant’s probationary period.?

The respondent was also concerned that Grant’s husband was not taking a sabbatical, although this was not voiced with the claimant. “It seems because the claimant volunteered this at interview, the respondent then felt free to return to it and keep it in mind, almost as an unspoken condition of her apprenticeship,” the panel said.?

Interesting conclusions reached by the tribunal, may lead to an appeal from the respondents. Namely

The tribunal ruled that Grant’s complaint of direct sex discrimination succeeded, rejecting the respondent’s argument that they would have treated a man in the same way.?

“There was an assumption present that the claimant would be likely to bear the majority of the child-caring responsibilities outside work hours than her husband, even though they were both working at the time,” the panel explained.

It also found that Thompson’s remarks about Grant were unfavourable treatment and directly based on her sex: “We do not accept that a convincing analogy can be drawn between a woman with child-caring responsibilities and a man with a time-intensive hobby, like rowing.?

“While we accept there is likely to be a large amount of work involved in completing the apprenticeship, and that Ms Thompson would have managed all apprentices’ expectations about this, we find she had an unconscious discriminatory view that, by virtue of being a mother with children, the claimant was less likely to be able to complete the work than others.”

It was further argued that Thompson telling Grant she was “skiving” would likely have made her feel “self conscious” and given the impression she was “doing something wrong” by not being present on Fridays, despite it being an agreed accommodation.

The ET added, : “Thompson would not have made the comment to a man with child-caring responsibilities because she also had an underlying assumption that men do not have the same level of child-caring responsibility as a woman in the same position.”

Furthermore, the tribunal found Grant’s sex had a “significant influence” on her dismissal by the respondent. It said that if a man’s hours were reduced by agreement at the outset of his employment, the issue of childcare responsibilities would “fade away and not remain a live and ongoing concern for the respondent”.?

“We did not consider that a man would continue to be asked about his wife’s sabbatical if he mentioned it in an interview, nor that it would then be held against him if it had not yet materialised,” said the panel, adding that it would be assumed appropriate childcare arrangements would be in place regardless of his wife’s sabbatical.

The tribunal concluded that “a man’s confidence would not be used against him in the way it was for the claimant”, and that a man would be “approached directly” about any productivity concerns or performance issue.

Short analysis of the case, Why did the claimant succeed?

The tribunal did not find in favour of the claimant simply because the respondent said that she was “skiving”, but because the comment was “inextricably linked” to the claimant’s flexible working arrangement, which she had needed because of her childcare responsibilities. In light of this important context, the comment amounted to discrimination, Additionally a key reasons the claimant succeeded in this case was that the claimant’s child-caring responsibilities were the basis for the respondent considering that she could not cope with the future workload and study requirements to pass the exams involved.

Could this be a case of unconcious bias in the work place?The case may well highlight the importance for respondent companies and businesses and organisations keeping upto date and providing regular equality and diversity training for their staff to avoid suggestions of unconscious bias.After all research conducted by Deloitte found 60 per cent of respondents reported a presence of bias in their workplace.

Watch this space of cases of this nature

Will the 4 day week ever wok successfully???

Reading tribunal