Employment - Flexible Working
The Problem:
A private bank has a number of branch offices throughout Scotland. The Manager of the Edinburgh branch is currently on maternity leave with her second child.
After her return to work after the birth of her first child, there were protracted and at times acrimonious discussions and negotiations between her and the bank over whether or not she could return to work on a four day basis. She did work four days for a period of time but eventually agreed to go back to working five days a week. The bank have been advised by her Assistant Manager at the Edinburgh branch that she wants to return to work on a three day basis.
To complicate matters the bank plan to open two offices in Fife, one in West Lothian and one in East Lothian. They want to create a new area called Central East and they want to appoint an Area Manager to look after all of these branches including the Edinburgh branch.
The Assistant Manager of the Edinburgh branch has been acting as Manager during the maternity leave of the manager and has been doing a fantastic job. They would certainly want to consider interviewing the Assistant Manager for the soon to be created Area Manager’s post and there is every chance that she might be the best candidate for the job. The Area Manager’s job is definitely without question a job that requires a five day full working week.
The bank are worried that if the job is given to the Assistant Manager ultimately then the Manager who is returning will effectively be reporting to what used to be her subordinate. They are worried that that might give rise to a Constructive Dismissal claim.
The Solution:
The bank were advised that they should meet with the Manager and explain to her in detail why it is that the Area Manager’s job is not suitable for part time working or job share. If the bank’s position relative to the hours of work the Area Manager’s job can be objectively justified then refusing to allow the Manager to be considered for that job on a part time basis will not constitute indirect Sex Discrimination.
If ultimately the bank appointed the Assistant Manager from the Edinburgh branch to the Area Manager’s role then there could be no justifiable claim for Constructive Dismissal from the returning Manager. She had effectively disqualified herself from the role due to the fact that she was only prepared to work three days per week.
The Outcome:
The Assistant Manager was appointed to the Area Manager’s job. Whilst the Manager was not overly pleased to effectively be reporting into a previous subordinate, the Area Manager’s job involved a lot of travelling and some early starts and that role did not sit well with the Manager’s childcare demands.