25 April 2022

Indirect discrimination

Oliver Tasker Partner & Head of Employment

Indirect discrimination is a complicated legal claim. Indirect discrimination happens when an employer applies a provision, criterion or practice (a ‘PCP’, such as a workplace policy) which disadvantages a particular group of people who share a protected characteristic, as well as disadvantaging the individual employee who brings the claim.

Indirect discrimination can be justified by showing that the policy in question is a proportionate way of achieving a legitimate business aim. In a recent decision, the EAT has shown just how complicated the legal test can be, even for eminent employment tribunal judges.

In Allen v Primark, the employee worked for Primark as a department manager at its Bury store. She went on maternity leave and proposed to return to work in November 2019. The standard UK terms for department managers at Primark required her to guarantee her availability to work late shifts. The employee had sole responsibility for her child and limited help from her mother, making late shifts difficult to accommodate. She applied to change her working hours under the company’s flexible working policy. The employer said they could not allow her request in relation to Thursday evenings because it would mean that four (including the employee) out of the six department managers at Bury could not cover Thursdays. The other three who could not work Thursdays were male. Piotr had a flexible working arrangement already (meaning he never worked the Thursday late shift) and the other two, Zee and Imran, had childcare responsibilities on Thursday evenings and implied terms not to work those shifts, though when asked on occasion they did work them. The employee brought an indirect sex discrimination claim. She said that the PCP was the requirement for her to guarantee her availability to work the Thursday late shift. The employment tribunal said the pool for comparison was department managers at the Bury store other than Piotr who had a flexible working arrangement. Of the people in the pool who were disadvantaged by the policy, two (Zee and Imran) were male and one was female. The tribunal therefore concluded that there was no group disadvantage for women. That meant the employee’s claim fell at the first hurdle. She appealed.

The EAT allowed the appeal. In deciding on a pool that included all Bury department managers bar Piotr, the tribunal had redefined the employee’s PCP from ‘being required to guarantee her availability’ to work a late shift on Thursdays to ‘being asked’ to work the same shifts. While Zee and Imran were prepared to work Thursday late shifts when asked, they were not required to guarantee their availability. Indeed, the employer had conceded that they both had an implied contractual right not to work that shift. The crux here was the element of compulsion identified in the PCP. Being required to guarantee availability is very different from being asked on occasion to help out - the latter can be refused whereas the former cannot. The employment tribunal had included in the pool for comparison two people - Zee and Imran - who were not disadvantaged by the PCP in the same way as the employee. The employer argued that excluding Imran and Zee from the pool left only a pool of three, which would be artificial. Whilst not saying that a wider pool, such as UK department managers at Primark, was necessary, the EAT said this argument showed that the pool selected by the tribunal was not logical. The case was sent back to the tribunal for rehearing.

This case shows how complicated indirect discrimination claims can be. The EAT here were not saying that the indirect discrimination claim should succeed, just that the basis for the tribunal finding that there was no discrimination was unsafe. A new tribunal will have to grapple with identifying the correct pool for comparison in this case, potentially using UK-wide department managers who are subject to the same managerial terms. This case also highlights the difficulties faced by employers in trying to cover antisocial shifts at a time when both men and women have childcare responsibilities. Employers dealing with flexible working requests must always bear in mind the risk of indirect discrimination claims and take early legal advice where matters are complicated.

Any questions?

Contact Oliver at oliver.tasker@wilkinchapman.co.uk to discuss

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