When determining whether a policy was indirectly discriminatory against women because of their greater childcare responsibilities, a tribunal erred in considering that the policy applied equally to men and women. It should have considered whether the policy put women at a particular disadvantage.
The facts
Indirect discrimination takes place when a provision, criteria or practice (often referred to as a ‘PCP’) is applied equally to employees in a comparison pool but creates a particular disadvantage for those employees in the pool who share a protected characteristic.
Ms Cummings is employed by British Airways to work in its flight crew. Air crew are rostered to have a specific number of paid rest days in a month. In 2010, British Airways implemented a policy of removing one paid rest day from the roster for every three parental leave days taken in a month.
Ms Cummings claimed in the employment tribunal that this policy was indirectly discriminatory on the grounds of sex. She argued that women bear the bulk of childcare responsibilities and that they were therefore more likely to take parental leave, meaning that the policy would put them to a particular disadvantage. She argued that the evidence – which showed that 24.2% of the women in the crew took parental leave, but only 11.9% of the men did so – supported this.
The pool used for comparison used in the tribunal (which was agreed by both parties) was all aircrew members with childcare responsibilities.
The employment tribunal rejected Ms Cummings’ claim on the basis that all aircrew members, whether male or female, who took parental leave would lose the paid rest day(s). Women did not, therefore, suffer a “particular disadvantage”.
Ms Cummings appealed to the EAT. Upholding her appeal, the EAT held that the tribunal had made an error in law. The fact all employees in the pool who take parental leave were affected in the same way did not mean that women did not suffer a particular disadvantage. Not all employees with childcare responsibilities would take parental leave. As well as the statistical evidence showing that more female crew members took parental leave, the courts have already held that women tend to “bear the greater responsibility for caring for the home and family than…men”. The tribunal had failed to consider whether more women were put to a particular disadvantage by the policy than men in the same circumstances. The case was remitted to the tribunal to consider this question.
The case was also remitted to the tribunal to consider whether the loss of a paid rest day did, in fact, constitute a disadvantage. This point had been raised by British Airways, arguing that there was no disadvantage because all the policy did was to deem periods of unpaid parental leave to include rest days in the usual proportion of one out of three.
What does this mean for employers?
In order to assess whether a policy creates a disadvantage, the pool chosen for comparison should include and be limited to those impacted by the policy.
Employers should be aware that female claimants in indirect sex discrimination claims do not have to prove that women bear the greater responsibility for child care: this is already accepted by the courts.
