How should the correct Provision, Criteria or Practice be applied in Indirect Discrimination Claims?

The Claimant worked for Primark Stores as a department manager. The Claimant returned from maternity leave and made a flexible working request due to childcare reasons. Primark approved part of her request but refused to agree that she would not be required to work late shifts on Thursdays.

The Claimant brought a claim for indirect sex discrimination. This was on the basis, she argued, that Primark had applied a PCP that department managers had to guarantee their availability to work Thursday late shifts, that this PCP put women at a disadvantage because of childcare responsibilities, and that she had been put at this disadvantage.

The Employment Tribunal (ET) created a comparison pool that included all the department managers who might be asked to work Thursday late shifts. The pool included two male managers who had an implied contractual right not to work Thursday late shifts but did so in emergencies. Having considered the pool, the Tribunal concluded that the PCP affected two men and one woman (the Claimant) and, therefore, did not put women at a disadvantage.

The Claimant appealed.

A PCP does not have an express definition but can be a rule or a requirement that puts a group of people, as well as a specific individual, at a disadvantage. For example, a rule preventing members of staff from wearing headwear could put individuals of certain religions at a disadvantage.

It is important to ensure that the correct PCP is identified when assessing members of staff who could potentially be at a disadvantage by virtue of that PCP.

The EAT upheld the Claimant’s appeal.

It found that, in constructing the pool, the Tribunal had redefined the Claimant’s complaint. The PCP she had identified was not simply that she was being “asked” to work Thursday late shifts, but that she was being required to guarantee her availability to do so. The two male managers were not subject to this availability requirement and therefore were in a materially different situation to the Claimant.

The ET had failed to properly engage with the PCP and had included two individuals to whom the PCP did not apply. It was insufficient for the ET to consider whether individuals might be “asked” to work the late shift without going on to determine whether there was an element of compulsion in the making of such a request.

The ET’s decision was set aside, and the case remitted.

Employers should ensure that they review their Equality and Diversity Policies on a regular basis. When flexible working requests are made, employers should ensure that rejecting such a request will not place the individual at a particular disadvantage when compared to colleagues.