Case Study
The Employment Appeal Tribunal (the EAT) has held that an Employment Tribunal (ET) was wrong to find that a requirement to travel significant distances necessarily puts women at a disadvantage.
Although it is established law that Employment Tribunals should consider the “childcare disparity” faced by women in the workforce, the Employment Appeal Tribunal has confirmed that it must still assess the actual impact of the policy in question (before deciding whether discrimination has occurred).
As a quick reminder, the Equality Act 2010 tells us it is unlawful for an employer to discriminate against individuals because of a protected characteristic, such as sex. Indirect discrimination occurs when an employer applies a provision, criterion or practice (PCP) which places individuals with a particular protected characteristic at a disadvantage. An employer can defend claims of indirect discrimination where it can show that the PCP is objectively justified. The legal test is whether the PCP is a proportionate means of achieving a legitimate aim.
In Perkins v Marstons (Holdings) Ltd, Mrs Perkins was Head of Enforcement for a company that worked in enforcing fines. The company operated nationwide, and Mrs Perkins had responsibility for its field agents but there was no contractual requirement for her to travel herself. However, a company restructure meant that she would be required to travel to various offices to hold in-person meetings. She had two children under five and her employer said that these meetings could be planned around childcare.
She raised a grievance regarding the change, citing the difficulty posed by her caring responsibilities. Her employer said that travel could be limited to just one day per month, but the change was happening, and it would be enforced whether she agreed or not. 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.
At first instance the ET found in her favour. It said the travel requirement amounted to a provision, criterion, or practice (PCP) that was applied to all but it had the effect of putting a certain group (i.e. women) at a disadvantage. The ET referred to what is legally recognised as the “childcare disparity”. This is effectively acknowledging widely recognised facts without requiring specific evidence in each individual case, and it is well established that women are more likely than men to have primary caring responsibilities and so are less likely to be able to comply with these types of travel requirements.
Bearing in mind that such a PCP can be justified as long as the employer can show that it was an objective means of establishing a legitimate aim, Marstons here argued that the policy was necessary for business efficiency and staff morale The ET did not agree with this and Marstons appealed to the EAT.
Case Study
The EAT agreed with the employer and upheld the appeal. It recognised the established “childcare disparity” doctrine that had been set down in the case of Dobson v North Cumbria NHS Foundation Trust.
However, it criticised the ET for only doing half of the assessment, saying that the ET must still go on to establish the actual impact of the individual policy in question. Although the ET had correctly identified the group disadvantage it posed, it had not assessed the impact in the workplace. This means considering the evidence to support the conclusion, which the ET had failed to do.
The case has now been remitted to the ET, which means that it will be heard again, using what the EAT has now identified as the correct approach.
Thorough attention needs to be given to a restructuring or introduction of new working patterns, to assess whether it places any particular groups at a disadvantage. Next, identify how it may affect individuals within the workforce.
Ensure that you have clear justification for the change and that risks have been identified.
Where a problem arises, best practice would be to consult with those affected and aim to find a less discriminatory way. Issues involving flexibility and caring commitments can be quite sensitive. In order to avoid claims, try to engage in meaningful consultation at an early stage, ensure that you are transparent about the requirements and why the change is being made and do your best to find alternative ways. If you genuinely cannot see an alternative, then explain why this is (with evidence). Even if this does not prevent a claim being made, it will put you in a better position to defend it.
In related news, the Employment Rights Bill is likely to add strength to flexible working requests by requiring the employer to show “reasonableness” when dismissing such a request. This is in addition to the eight statutory grounds for refusal and is likely to bring more decisions into the space for legal challenge. Most (although not all) flexible working requests are from staff who would be able to bring a claim for indirect discrimination, so thorough risk assessment and analysis is required.
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