Facts

Ms Johnson joined the Home Adaptions for Independent Living (HAIL) team as an Operations Support Worker in June 2016. The role was a job-share in which she was to work 18 hours per week. The other Operations Support Worker was absent due to sickness and subsequently left.

Ms Johnson also acted up in the role of Operations Support Manager in the HAIL team when Ms Simpkin went on maternity leave. This position was expected to end on 20 June 2017 when Ms Simpkin was due to return to work. Ms Johnson was repeatedly stretched by the amount of work that she was responsible for.

Ms Simpkin did not return to full time work in July 2017 and instead worked part time at home and came into the office to attend meetings. This meant that Ms Johnson continued to be stretched by her workload, particularly the administrative aspects.

Ms Johnson, who was 56, claimed that the decision to allow Ms Simpkin to return to work on a part-time and homeworking basis was more favourable treatment and was because of age. Ms Johnson was not of childbearing age and so would not receive these benefits.

Decision

The Employment Tribunal (ET) rejected the claim of direct discrimination on two grounds.

Firstly, it held that even if the decision to allow Ms Simpkins to work from home disadvantaged Ms Johnson, the decision could not be said to be based on Ms Johnson’s age. The reason for it was because Ms Simpkin was returning from maternity leave and had applied formally for flexible working. The decision would have been the same regardless of the age of Ms Johnson and so could not be discrimination according to age. Ms Johnson also had a flexible working arrangement herself.

Secondly, the ET concluded that even if this decision was direct age discrimination, the claim could not be upheld as it was brought out of time. Although the consequences of allowing Ms Simpkins to work from home continued, the decision was a one off event and could not be seen to be a continuing act. As such, the claim was made out of time. Ms Johnson could not point to any evidence to support the delay in bringing the claim and so there was no just and equitable reason to extend the deadline.

The full judgment is available here.

Ms N Johnson v London Borough of Newham: 3201193/2018