Was it indirect sex discrimination to refuse a flexible working request that would accommodate for childcare responsibilities?

The Employment Appeal Tribunal (“EAT”) in the case of Allen v Primark Stores Ltd has considered whether the Claimant was subjected to indirect sex discrimination by the Respondent failing to accommodate all of the Claimant’s flexible working requests to allow her to undertake her childcare responsibilities following a period of maternity leave.

Background

The Claimant worked as a Department Manager for the Respondent, Primark Stores Ltd. Following a period of maternity leave, the Claimant intended to return to work in November 2019. Before returning, the Claimant submitted a flexible working request for childcare reasons. The Claimant’s main concern was that she would be disadvantaged, as she was unable to guarantee her availability for late shifts on a Thursday, as managers were required to do. The Claimant felt that this requirement for her to guarantee, in advance, her availability to work some late Thursday shifts put her, as a woman with childcare responsibilities, at a particular disadvantage.

The Respondent did not accommodate all of the Claimant’s flexible working requests and the Claimant subsequently resigned and brought a claim to the Employment Tribunal (“ET”) claiming constructive unfair dismissal and indirect sex discrimination. This summary focuses specifically on the issue of indirect sex discrimination only.

The Law

Indirect discrimination is concerned with acts, decisions or policies which are not intended to treat anyone less favourably, but which in practice, have the effect of putting a particular group of people with a particular protected characteristic at a disadvantage compared to those who do not hold that protected characteristic. Where such a policy places an individual with a relevant protected characteristic at a disadvantage, as defined at Section 19(3) of the Equality Act 2010, it will amount to indirect discrimination unless it can be objectively justified. Sex is a relevant protected characteristic and is defined at Section 11 of the Equality Act 2010.

Section 19 of the Equality Act 2010 defines indirect discrimination as:

“A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protect characteristic of B’s.”

Decision

At first instance, the ET concluded that the provision, criterion or practice (PCP) affected two men and one woman (namely the Claimant) and therefore did not put women at a particular disadvantage and therefore rejected the Claimant’s claim. In coming to this decision, the ET had to consider a comparison pool of other departmental managers who might also be asked to work Thursday late shifts (the PCP), including men and women.

On appeal, the EAT found that in constructing the comparison pool, the ET incorrectly redefined the Claimant’s complaint. The PCP she had identified was not simply that she was being “asked” to work Thursday late shifts, but that she was being required to guarantee her availability to do so each week, in advance. The two men in the comparison pool were not subject to this guaranteed availability requirement and therefore were in a materially different situation to the Claimant. There was therefore a substantial difference in material facts here and so the Tribunal’s decision has been set aside and the case remitted back to the ET for reconsideration as to whether the PCP the Claimant has pleaded does in fact disadvantage women.

Comment

This case reiterates the importance of identifying valid comparators for the purposes of assessing whether indirect discrimination has arisen and in constructing a valid comparison pool. It is important for the Tribunal to properly engage with the provision, criterion or practice identified or pleaded and to properly consider what it is about the PCP that puts a particular group of people at a substantial disadvantage in comparison with those who do not hold that protected characteristic. The pool will always depend on the nature of the PCP being tested, however an appropriate pool must be one which “suitably tests the particular discrimination complained of.”

Case reference: Allen v Primark Stores Ltd [2022] EAT 57