Requirement to guarantee working late: indirect discrimination?

Does an employer’s need for an employee (who is a mother with childcaring responsibilities) to guarantee her availability for a late shift amount to indirect sex discrimination?

Indirect discrimination: the problem and the definition

In general, the answer to the above question is, probably, yes. BUT, employers do need to be very careful how they assess these cases in order to work out whether any refusal of a request for flexibly working amounts to indirect discrimination under the Equality Act 2010. To do that you’ll need to be clear on the law. With this in mind, and before we explore this case, here’s a summary of the key legal principles that apply:

• There must be a rule applied by the employer i.e., a provision, criterion or practice. As we’ll see in the case here, the obligation to guarantee to cover late shifts amounts to such a PCP.
  
  
• The PCP must put, or would put:

• the claimant to a particular disadvantage. In this case, the Claimant was a woman; and
• the PCP must also put persons who share a protected characteristic at a particular disadvantage; and
• a pool for comparison is then identified with both those who are disadvantaged and those who are not.

• The Claimant needs to share the protected characteristic of the disadvantaged group.

• The PCP should be the cause of the individual and group disadvantage.

• Finally, an Employer can only defend/avoid liability for any such indirect discrimination if it proves the PCP is: Objectively justified i.e., their PCP is a proportionate means of achieving a legitimate aim.

Ms Allen worked for Primark. Being a female employee with main childcare responsibilities she appealed against an Employment Tribunal decision made against her on the basis that Primark’s requirement that employees guaranteed their availability to work one late shift per week did not, in fact, put Ms Allen, a woman, at a disadvantage - she won her appeal.

What were the facts of the original case?

 Ms Allen made a request for flexible working and, as we know, a refusal by the employer-based upon the application of a rule or requirement applying to all can, generally speaking, create a claim for indirect discrimination i.e. that rule a PCP, puts one group at a disadvantage compared to another. In this case, women who tend to have main childcaring responsibility more than men, thus, would be less likely to be able to work the late shifts and comply with that requirement.

In simple terms, here are the facts, and then we’ll look at the decision.

• Ms Allen was a store Manager and she had sole responsibility for her child.
• Her contractual terms required her to ‘guarantee’ her to be available for said late shifts.
• The other store Managers were made up of a female trainee manager and four male managers.
• Ms Allen requested flexible working, contending there was enough cover without her for late shifts needed.
• Primark agreed, except for one day -Thursdays - on the basis that:
  • four out of the six managers already made clear they couldn’t work the Thursday late shift;
  • thus, their hands were tied because if they agreed to Ms Allen’s request they wouldn’t have sufficient cover for holidays or sickness.

Ms Allen issued a claim for indirect sex discrimination. She argued as follows:

• Primark’s requirement guarantee the late shifts was to a provision, criterion or practice (PCP); and
• that PCP put her and women at a substantial disadvantage as compared to men.

As we noted above, employers can defend such claims by arguing that whilst there was such a PCP, such treatment was a proportionate means of achieving their legitimate (commercial) aims. This is what Primark argued.

Ms Allen’s original claim succeeded

Interestingly, in this case, the Employment Tribunal analysed and acknowledged as follows:

• the employees/managers affected by the PCP were:
• six department managers; and
• one manager wasn’t counted here because he already had a flexible working agreement in place allowing him not to work the late shift; and
• Of the rest of the Managers, two were male managers with already agreed informal agreements not to work the Thursdays - because of their own childcare needs, albeit they voluntarily worked the late shift when any others couldn’t cover it.

 Bearing all that in mind, that left:

• three managers in the pool who were disadvantaged by the need to cover a late shift and from those:
  • two were men; and
  • one was a woman.

• That meant, in the first instance, the Employment Tribunal held there was no disadvantage as alleged by Ms Allen.

• Others had been required to cover the late Thursday shift, notwithstanding their own childcare obligations and that would have applied to Ms Allen too.

But, in her Appeal against this decision, Ms Allen argued that the Employment Tribunal had wrongly included employees in the pool on the basis that those they included worked the late shift on Thursday only on a ‘voluntary basis’ as opposed to her case where she was required to ‘guarantee’ she could cover it.

Ms Allen won her Appeal: What should employers do?

The EAT allowed Ms Allen’s appeal because the others included in the pool, as argued by the employer, were incorrect, under the Equality Act 2010, they had to be persons who were in circumstances that were the ‘same or not materially different’ thus, the difference between ‘voluntarily’ covering and ‘guaranteeing’ cover was not the same. By removing those from the pool, Ms Allen and her group were, in fact, subject to a substantial disadvantage.

Employers do need to study each refusal for flexible working carefully. Claims for indirect discrimination are often overlooked and, as we can see here, the complexities of the required legal analysis of such cases means some legal training for managers and HR practitioners is necessary to avoid costly claims.