The EAT has confirmed that the pool for comparison for an indirect discrimination claim must accurately relate to the PCP that the claimant is pleading.
The facts
Miss Allen was a department manager at Primark’s store in Bury. She went on maternity leave, and (as a single mother with limited childcare support) was looking to return to work with flexible working arrangements. She was particularly concerned about a contractual requirement to guarantee her availability to work late shifts: this was a standard requirement for department managers.
Primark agreed that Miss Allen’s working pattern need not include late shifts on other days, but said that she would still be required to be available for the late shift on Thursday nights.
Primark told her that this was because only two of the six department managers had the flexibility to work the Thursday late shift. Because of her childcare responsibilities, Miss Allen could not guarantee her availability to work the Thursday late shift.
Miss Allen resigned, and claimed that she had suffered indirect sex discrimination and constructive unfair dismissal. Her claim was that Primark had applied a provision, criterion or practice (a “PCP”) that department managers had to guarantee their availability to work on Thursday late shifts, that this PCP put women at a disadvantage because of child care responsibilities, and that she had been put at this disadvantage.
The employment tribunal put together a comparison pool so that it could assess whether the PCP had a discriminatory impact on women. The pool consisted of all the department managers at the Bury Primark store who might be asked to work the late shift on Thursday nights. This included two male department managers (Z and I) who had childcare commitments and were not contractually required to work on Thursday nights, though they had done so in emergencies. The tribunal decided that the PCP affected two men and one woman and therefore that it did not put women at a disadvantage. Miss Allen’s claim was rejected, and she appealed to the EAT.
The EAT upheld the appeal. It considered that the tribunal had effectively redefined Miss Allen’s complaint when it constructed the comparison pool. The PCP claimed by Miss Allen was that department managers had to guarantee their availability to work on Thursday late shifts.
However, neither Z nor I were required to guarantee their availability to work the late shift on Thursdays; they could only be “asked” to do so. Miss Allen was therefore in a materially different situation from them, and they should not have been included in the comparison pool.
The case was remitted to the employment tribunal.
What does this mean for employers?
The issue of pools in indirect discrimination cases is tricky. Once the correct pool is applied, whether or not Primark successfully defends this case is likely to come down to whether it can show that the requirement for department managers to work the late shifts on Thursdays is objectively justified as a proportionate means of achieving a legitimate aim. Employers who are considering flexible working requests from women with child care responsibilities should therefore make sure that they can demonstrate that they have pro-actively considered solutions that would allow them to accommodate the requests and (where they cannot find a solution and turn down a request) they can demonstrate that they have good reason to do so. A commitment to earlier flexible working requests can be part of this justification argument.
