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Changing employee’s travel requirements was unlawful sex discrimination
Adrian Fryer
The requirement to travel for a job is usually something that is made clear at the start of employment. Each party knows where they stand. But what happens if an employer’s expectations for employee travel change?
The recent employment tribunal case of Perkins v Marston (Holdings) Limited serves as a reminder to employers that they need to consider whether any changes to travel requirements risk discrimination claims. In this case, the Claimant was a senior manager, based in the Respondent’s offices in Lancashire. She managed employees in the North-West and also employees at one of the Respondent’s offices in Essex. She initially managed the Essex-based employees remotely. The Respondent informed her she would need to travel to Essex as part of her role. She could not do this owing to childcare issues. She refused to agree to this change and was eventually made redundant. She claimed unfair dismissal and indirect sex discrimination.
The tribunal held that the requirement for the Claimant to travel to Essex was indirect sex discrimination. It was a requirement which placed women (who were more likely to have childcare responsibilities) at a disadvantage and placed the Claimant at a disadvantage. The Respondent attempted to justify the requirement by arguing that it was a proportionate means of achieving the aim of a smooth running of the business. Their arguments weren’t accepted. The Claimant had managed the Essex office remotely without any issue for 10 months previously.
Employers considering changing travel requirements for employees should start by looking at the contract of employment. It is important to understand what was agreed about travel at the outset of the relationship. Even if the contract includes some flexibility, consider whether it would be reasonable to require it in the employee’s specific circumstances. Common pinch-points are childcare issues and disability. If the contract does not include the required flexibility, then, as in the Perkins case, the employee’s agreement will be needed.
If the employee refuses, then the employer needs to think carefully about whether it wants to push ahead (which would involve dismissing the employee and offering re-engagement on new terms containing the necessary travel flexibility) or whether to stick with the status quo. In Perkins, pushing forward without a justifiable reason resulted in discrimination and unfair dismissal.