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Work Matters: Indirect discrimination, the PCP and pool for comparison

Analysis

Allen v Primark

Background


Flexible working requests

Every employee with at least 26 weeks’ service has the right to ask to work flexibly under the Employment Rights Act 1996 (ERA). Employers can lawfully refuse such requests on a number of business grounds but such a refusal can still lead to claims; particularly for indirect sex discrimination by female employees (who in general continue to have more childcare responsibilities than men).

Indirect discrimination

Indirect discrimination takes place when an employer applies an apparently neutral workplace policy or practice (known as a ‘provision, criterion or practice’ (PCP)), which does (or would) disadvantage a group of people (including the claimant) with a particular protected characteristic under the Equality Act 2010 (such as age, race or sex), compared to others who do not share that characteristic. However, indirect discrimination will not be unlawful if the employer can establish that it is justified as being a proportionate means of achieving a legitimate aim.

To establish disadvantage, the group and individual’s experience needs to be compared to other employees (without the protected characteristic) who are also subject to the PCP. The people used in this comparative exercise are usually referred to as the ‘comparison pool’ and will generally include all workers who are affected by the PCP, whether positively or negatively. For example, if a female employee claims that requiring all employees to start at 8am is a PCP which disadvantages women (and her) on the basis of childcare responsibilities, the likely pool for comparison would be all of the employees who are required to start at 8am, not just those who found it difficult to start at that time.

However, choosing the correct pool can prove tricky and Tribunals can get this wrong, as illustrated by the following case.

Facts

Ms Allen was employed by Primark as a department manager in its Bury store. Her contract (which reflected the standard UK terms for department managers) required her to guarantee that she could work late shifts, including on Thursdays.

Ms Allen went on maternity leave and before returning to work, she made a flexible working request to change her contractual hours, including the removal of the requirement for her to work late shifts (as she had sole responsibility for her child and limited help from her wider family).

Whilst Primark met some of her requests, they still required her to guarantee she would be available for the Thursday late shift. Ms Allen was unable to do so and she resigned and brought an indirect sex discrimination claim.

Ms Allen argued that Primark’s requirement for department managers to guarantee their availability to work Thursday late shifts was a PCP which put women (and her) at a disadvantage when compared to men because of childcare responsibilities.

Tribunal decision

To assess the discriminatory impact of the PCP, the Tribunal constructed a comparison pool that included all the department managers in the Bury store who could be asked to work Thursday late shifts. Having considered the pool, the Tribunal decided that there were three people in it who were disadvantaged by the policy; two men (who also had childcare commitments) and Ms Allen. As there were as many men disadvantaged by the PCP as women, the Tribunal concluded that there was no particular disadvantage suffered by women and Ms Allen’s claim failed.

Ms Allen appealed, arguing that the pool for comparison had not been correctly identified.

EAT decision

The EAT upheld Ms Allen’s appeal and found that the Tribunal had used an incorrect comparison pool which did not relate to the precise PCP objected to by Ms Allen. The correct PCP was that department managers had to guarantee
their availability to work late shifts on Thursdays. Unlike Ms Allen, the two male managers included in the comparison pool were not required to give this guarantee; they were only asked to work late on a voluntary basis. The men were therefore in a different situation to Ms Allen and should not have been included in the comparison pool. The EAT sent the case back to the Tribunal for rehearing.

Fladgate comment

This decision confirms the importance of correctly identifying the precise PCP the employee alleges is indirectly discriminatory - this affects the identification of the pool of individuals impacted by it and, by extension, the number (and identity) of those disadvantaged, which will determine whether the PCP is discriminatory or not.

However, the Tribunal’s failure to correctly identify the PCP in this case does not mean that Primark did indirectly discriminate against Ms Allen. It means that the Tribunal will need to consider the issue of the comparison pool again at another hearing; this time using the correct PCP that ‘department managers had to guarantee their availability to work late shifts on Thursdays’. For example, this time the Tribunal may need to place all UK-wide department managers who are required to guarantee their availability to work late on this day in the pool for comparison.

Although it is ultimately the Tribunal’s task to decide the scope of the PCP, it is useful for employers to clarify this with an employee at an early stage of the complaint. Without properly understanding what exact policy or practice the employee considers to be the discriminatory PCP, it is difficult to understand whether it is discriminatory and what, if anything, can be done about it. In fact, to try to avoid any such complaint, it is important to analyse and monitor the discriminatory effect of any workplace policy or practice, for example by completing an equality impact assessment or more informal process. If one or more groups are negatively impacted, consider what steps you can take to remove or reduce the disadvantage or, if this is not practicable, whether the discriminatory effect can be justified.

The decision is also a useful reminder that even if an employer’s refusal to grant an employee’s flexible working request is on one of the prescribed grounds, such refusal can still result in a claim for indirect discrimination. This is particularly important to bear in mind given that the award for losses in such cases are uncapped and can be especially high where (as in this case) the discrimination results in the employment terminating.

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