Contractual hours, childcare and discrimination: lessons for employers
05.11.2026
A male senior leader who was told to “sort out” his childcare arrangements so that he could work his contractual hours was directly discriminated against because of his sex.
That was the conclusion of the employment tribunal in Lechmere-Smith v Kensington Park School Limited.
What happened?
Mr Lechmere-Smith joined Kensington Park School as Director of Studies in August 2023. His contract stated that his working hours were 8am to 6pm, Monday to Friday, and it included an entire agreement clause. That said that the written contract represented the whole agreement between the parties and any statement or assurance given by the school could not be relied on unless it was included in the contract.
Before signing it, Mr Lechmere-Smith told the then Headmaster that he could not work those hours every day because of his childcare responsibilities. He said that unless there was some flexibility, he would have to turn down the job.
The Headmaster reassured him that although the contractual hours were stipulated, they were “not set in stone” and that there had to be “a level of understanding of personal circumstances”. Mr Lechmere-Smith then signed the contract and started work.
The school allowed him some flexibility during his first term, and he occasionally arrived after 8am and left before 6pm.
Things changed after the Head was suspended and someone else became acting Headmaster. On 11 January 2024, the acting Head wrote to Mr Lechmere-Smith informing him that he had to work his contractual hours and had a month to sort out his childcare so that he could be at school from 8am and support evening events. Mr Lechmere-Smith asked whether he was expected to remain on site until 6pm every day but did not receive a reply.
Less than two weeks later, the acting Head told Mr Lechmere-Smith that his employment was “not working” and dismissed him. The school argued that this was because of concerns about his performance and conduct. Mr Lechmere-Smith said the real reason was his working hours and childcare arrangements and pointed to female colleagues who had been allowed greater flexibility.
He brought a claim for direct sex discrimination.
What did the tribunal decide?
The tribunal started by considering whether Mr Lechmere-Smith's pre-contract discussions with the Head had changed his contractual hours. It found they hadn't.
The entire agreement clause in the contract prevented the discussions about flexibility amounting to a contractual variation and Mr Lechmere-Smith's hours of work remained 8am to 6pm. It also rejected the idea that the contract had been varied by giving him a degree of flexibility during the first term. The tribunal characterised that flexibility as “sporadic, informal, and unaccompanied by any statement, express or implied, that the contractual hours no longer applied”.
The tribunal then went on to determine why Mr Lechmere-Smith was dismissed and whether his sex had a significant influence on his treatment.
It rejected the school's argument that performance was the operative reason for his dismissal. It found that the real reason for terminating his employment was because it wanted Mr Lechmere-Smith to be in school during his contractual hours and didn't believe he would be able to do so.
None of the female members of staff Mr Lechmere-Smith relied on had materially identical circumstances to him. The tribunal therefore constructed a hypothetical comparator: a female senior leader with the same expectations and demands, whose childcare responsibilities sometimes prevented her from strictly complying with the 8am to 6pm hours.
It found that such a woman would not have been sent the letter enforcing the contractual hours, required to “sort out” her childcare within a month, had her hours strictly enforced or been dismissed.
Mr Lechmere-Smith had therefore been treated less favourably. The tribunal found that the school's explanation for the difference in treatment was “inconsistent, retrospective, and unsupported by contemporaneous evidence”. It concluded that the “selective enforcement” of Mr Lechmere-Smith's working hours and the decision to dismiss him were materially influenced by his sex.
Lessons for other employers
It's common for employees to ask to work flexibly to meet their childcare needs. Many submit flexible work applications to obtain permanent changes to their hours or working patterns. Mr Lechmere-Smith didn't submit an application. That may have been because he just needed a degree of flexibility when necessary, rather than a permanent change to the hours when he was required to be in school. Those types of arrangements are difficult to structure via a change in contractual terms.
There was evidence that the school allowed other teachers some flexibility in their arrangements. All were women, although not all had children or needed flexibility to support their childcare responsibilities. Mr Lechmere-Smith was treated differently - he was told to “sort out” his childcare and required to work in school during his contractual hours.
This case illustrates the risks of allowing some employees flexibility while taking a stricter approach to others. If there is a difference in treatment, you need to be able to explain the non-discriminatory reason for it. Once a claimant establishes facts from which a tribunal could conclude, in the absence of an explanation, that discrimination occurred, the burden of proof shifts to the employer.
You therefore need to apply your rules consistently - particularly where you give line managers some discretion about ad hoc flexibility. It's really important not to make assumptions about an employee's childcare, or other caring responsibilities. And keep a clear record of your reasons for granting flexibility to some members of staff but not for others - even if the request isn't a formal statutory request for flexible working.
The other interesting point is about including entire agreement clauses in your contracts of employment. It's generally sensible to add these to avoid arguments later down the line that the interviewing manager gave assurances which are not included in the contract. That's because the clause will normally operate to confine the parties to the written terms.
But tribunals will look at the true substance of the relationship between you and your employee and whether that has been applied consistently. Where the written terms clearly reflect the agreement, an entire agreement clause will prevent reliance on alleged oral variations. Where they do not, the existence of the clause will not necessarily prevent the tribunal from considering whether additional terms or different contractual realities arose in practice.
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