In Donovan v GE Aviation Systems Ltd a tribunal found that the employer was justified in requiring a senior financial manager’s job to be done on a full-time basis as it was a proportionate means of achieving a compelling business aim.
Ms Donovan held a full-time senior management role responsible for all aspects of financial management and control. Her request to return from maternity leave working 24 hours a week over four days was refused by the finance director (FD). The FD set out the reasons the role needed to be carried out on a full-time basis, i.e. the need to increase and enhance the team’s operational engagement; the need to proactively engage with the cross-functional team; the need to pull the team together following a reorganisation; concern about the existing team members’ heavy workload; and, the need for a strong coach to focus on personal development of the team.
The FD also considered the proportionality of the requirement. He would not be able to reorganise the work relating to the shortfall in hours among existing staff. A job-share option was not a viable alternative as it would be difficult to find a suitable candidate and arrange for handover of critical activities. Finally, if part-time working was allowed, this would result in a substantial detrimental impact on quality and performance; therefore the benefits to the business by insisting on full-time working, far outweighed any disadvantage suffered by Ms Donovan.
The tribunal rejected Ms Donovan’s indirect sex discrimination. The requirement to work part-time was indirectly discriminatory as it put women at a particular disadvantage. But the employer’s reasons for requiring full time work constituted a legitimate business aim and the employer had ably demonstrated how full-time working was a proportionate means of achieving that aim.
This case provides an example of an employer approaching the justification test for discrimination in exactly the right way by providing a compelling business argument and demonstrating the proportionality of the approach, including that the needs of the business outweighed the discriminatory effect on the employee.
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