The EAT has held that a tribunal was wrong to find that a requirement to travel significant distances necessarily put women at a disadvantage. Tribunals can take into account the "childcare disparity" faced by women in the workforce, but must still assess the actual impact of a policy in the workplace.
Facts
Marston (Holdings) Ltd (MH) is a national company concerned with the enforcement of penalties, such as unpaid council tax, parking fines, etc. The claimant, Mrs Perkins, was employed by MH as Head of Enforcement and was responsible for the management of the administrative team and for field agents. Her contract recorded that her place of work was Helmshore and there was no contractual requirement for her to travel within her role. At the relevant time, she had primary caring responsibility for her two children, both under five.
Following a company restructure, Mrs Perkins was told that she would need to travel to MH’s other offices and have face-to-face meetings, albeit that this could be planned around childcare. She objected to this and submitted a grievance. MH’s position was that travel could be limited to one day per month. If this was not acceptable, however, the change would be enforced and could lead to the termination of Mrs Perkins' employment by reason of redundancy. Mrs Perkins argued that the requirement to travel significant distances disadvantaged her, and women as a group, due to her childcare responsibilities and brought claims of indirect sex discrimination and unfair dismissal.
The employment tribunal upheld both claims. It found that the travel requirement amounted to a provision, criterion, or practice (PCP) that put women as a group at a disadvantage, as well as Mrs Perkins. In making its decision, the tribunal took “judicial notice” of what’s known as the “childcare disparity”. The concept of “judicial notice” allows a tribunal to accept widely recognised facts without requiring specific evidence, and the “childcare disparity” is the widely recognised fact that women are more likely than men to have primary caring responsibilities and so are less likely to be able to comply with travel requirements. MH argued that the policy was justified because it was necessary for business efficiency and staff morale, but this was rejected by the tribunal.
MH appealed, arguing that the tribunal had misapplied judicial notice and had failed to properly assess justification. The EAT agreed and upheld the appeal.
The EAT observed that in Dobson v North Cumbria Integrated Care NHS Foundation Trust (which we covered in July 2021 – see here) the EAT had held that, in a claim of indirect sex discrimination, judicial notice can be taken of the childcare disparity as between men and women. However, tribunals should not stop there - they must still assess the actual impact of a policy in the workplace. The tribunal’s task is to consider the particular nature of the PCP to determine whether that would clearly give rise to difficulties for women, such as would amount to a group disadvantage. It was wrong to assume that all women in Mrs Perkins’ situation would be unable to meet the travel requirement without considering whether there was in fact any evidence to support that conclusion.
The tribunal had also failed to properly consider whether the PCP could be justified by considering its application to all affected employees.
The case is likely to be remitted to a tribunal to consider the case using the correct approach.
What does this mean for employers?
When introducing a new policy, employers should fully consider how it will impact groups and individuals in the workforce. Where there is a risk of disadvantage it is advisable to consult with all employees or particular employees, including exploring alternatives which may be less disadvantageous. It is important to also ensure and document clear justification for the policy.
