||All England Reporter
|| All ER (D) 83 (Jul)
|| EWCA Civ 846
||Court of Appeal, Civil Division
Pill, Thomas and Gage LJJ
||Brian Langstaff QC and David Massarella (instructed by Browne Jacobson) for the employee.
||Andrew Clarke QC and Jason Coppel (instructed by Browne Jacobson) for the employers.
||7 July 2005
Employment - Discrimination against a woman - Employer rejecting employee's request to job share following maternity leave - Employment tribunal finding unlawful discrimination - Tribunal finding employer unable to show decisions justifiable irrespective of sex of person to whom applied - Whether employer to be granted margin of discretion when deciding whether to permit job share - Whether tribunal applying correct test - , s 1(2)(b)(ii).
When considering whether an employer fell within s2(1)(b)(ii) of the 1975 Act, the tribunal had to determine whether the employer's proposal was objectively justifiable and reasonably necessary. Although, the employer did not have to demonstrate that no other proposal was possible, the use of the word reasonably did not permit a margin of discretion or range of reasonable responses. The principle of proportionality required the tribunal to take into account the reasonable needs of the business, but it had to make its own judgment, upon fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal was reasonably necessary.
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