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In the case of Allen -v- Primark Stores Limited, Ms Allen was a department manager at Primark who was due to return to work following a period of maternity leave in November 2019. Prior to returning, she submitted a flexible working request as she was concerned that she would be disadvantaged by the provision, criterion or practice (PCP) Primark had in place requiring her, as a department manager, to guarantee she would be available to work late shifts on a Thursday.

Primark did not grant the flexible working request, as other department managers within the store had agreed flexible working arrangements that meant they were not able to work late shifts on a Thursday, which in turn meant there was a risk there would be a lack of cover in the event of Ms Allen’s absence. As a result of the refusal to grant the flexible working request, Ms Allen resigned, claiming constructive dismissal.

Ms Allen also brought a claim for indirect sex discrimination on the basis that:

  • Primark applied the PCP that all department managers had to guarantee their availability to work late shifts on a Thursday;
  • That PCP put Ms Allen, as a woman, at a particular disadvantage because of childcare responsibilities (tribunals generally uphold this as a legitimate point);
  • Ms Allen had been put at this disadvantage; and
  • Primark could not justify the PCP as a proportionate means of achieving a legitimate aim.

Indirect discrimination occurs in instances where an employee has not been subjected to unequal treatment, but has not had their needs, stemming from a protected characteristic, accommodated for.

In a claim for indirect discrimination under section 19 of the Equality Act 2010 (EqA 2010), a tribunal must be satisfied that the employer has a PCP that puts individuals with a particular protected characteristic at a disadvantage as compared to a relevant pool of other employees who do not share that protected characteristic. Generally, the comparison pool will depend on the nature of the PCP being relied upon by the employee.

At first instance, the ET constructed a comparison pool for the purposes of Ms Allen’s indirect discrimination claim that included all department managers at the Primark store who could be asked to work late on a Thursday, except for one manager who had agreed a separate arrangement with the store. Based on this pool, the ET found that two men and one woman were disadvantaged by the PCP, and therefore, women as a group were not put at a particular disadvantage. Ms Allen’s indirect discrimination claim failed, and she then appealed to the EAT.

The EAT allowed Ms Allen’s appeal, finding that the ET had incorrectly constructed the pool for comparison. The comparators identified by the ET were simply asked to work the late shifts on a Thursday. Ms Allen, however, was required to go so far as to guarantee her availability to work those shifts. This meant the EAT felt that there was a material difference between Ms Allen’s position and her comparators due to the element of compulsion imposed on her by Primark. The pool should only have consisted of those managers who were required to work on a Thursday. Alternatively, the EAT pointed out that the ET could have adopted a UK-wide pool. The ET was entitled to restrict its focus to the company’s workforce, but in doing so had failed to identify an appropriate pool for comparison.

The case has been remitted to the ET for a rehearing.



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