In a claim for indirect sex discrimination arising out of a flexible working request, a recent decision of the EAT in Allen v Primark Stores Ltd illustrates the importance of identifying the correct pool for comparison.
Ms Allen commenced employment with Primark in August 2011 and became a department manager at the Bury store. Whilst on maternity leave, she made an application under Primark’s flexible working policy because she wanted to change her contractual hours. Unlike the other staff, the managers’ contracts specified that they were required to work one of four shifts each day over a five day period which included a late shift from 10.30am to 8.30pm. The requirement to be available to work the late shift was a concern for Ms Allen because of her childcare responsibilities. She had sole responsibility for her child with only some limited support from her mother.
At the material time, there were eight managers at the Bury store: six department managers, a store manager and an assistant store manager. In considering her flexible working application, Primark agreed that Ms Allen did not have to work late shifts except on Thursdays. On the other days, there were enough managers to cover the late shifts. On Thursdays however, there was insufficient flexibility in the management team. Two managers were needed to cover a late shift but only one other manager (A) was available along with Ms Allen. Primark said it was unable to agree to Ms Allen’s request because it would leave the store without any cover on Thursdays if A could not work or went on holiday. It was unclear how many Thursday late shifts Ms Allen would have to work but because of her childcare responsibilities, she could not guarantee her availability to work that specific shift.
Ms Allen appealed the decision but this was rejected by Primark for the same reason as before.
Ms Allen resigned on 24 September 2019 and brought claims of indirect sex discrimination and constructive unfair dismissal.
Under section 19 of the Equality Act 2010 (the Act), indirect discrimination occurs when a provision, criterion or practice (PCP) disadvantages someone with a particular protected characteristic. Indirect discrimination can be objectively justified however if the PCP is a proportionate means of achieving a legitimate aim.
In addition, the Act provides that the pool for comparison has to be populated by persons who (apart from the protected characteristic in issue) are in circumstances that are the same or not materially different.
Ms Allen argued that the requirement for department managers to guarantee availability to work late shifts amounted to a PCP that put women (a) who were department managers at that workplace or (b) who were department managers in the wider workforce at a particular disadvantage compared to men.
The particular disadvantage was the difficulty or practical impossibility of working evenings while having childcare responsibilities. Ms Allen argued that she had suffered that disadvantage and that the PCP imposed had not been a proportionate means of achieving a legitimate aim.
Primark accepted that requiring department managers to work varying shifts, including late shifts amounted to a PCP but denied that this placed women at a substantial disadvantage. It also argued that the treatment was a proportionate means of achieving a legitimate aim – for example, to ensure an appropriate level of management cover during operational and trading hours and to close stores securely and safely.
The Employment Tribunal identified that the PCP in issue was the requirement for Ms Allen to work on the late shift on a Thursday evening.
In identifying the pool for comparison, it concluded this would be comprised of the department managers and trainee managers “who potentially have to work the Thursday [late] shifts, however convenient or inconvenient to them it was”.
Looking at the Bury store, there were four department managers including Ms Allen who had historically worked on Thursdays. One had no issue working Thursdays but two men, Z and I, had childcare issues.
The arrangements for Z and I were informal and although generally they did not work Thursdays (and its late shift) the Employment Tribunal accepted that when asked to do so and when the store required it, the two men did work Thursdays.
In relation to the pool and the individuals disadvantaged by the requirement to work a late shift on a Thursday because they had childcare responsibilities, two were men, Z and I, and one was a woman, Ms Allen. On that basis, women were not at a particular disadvantage and there was no indirect sex discrimination. As there was no fundamental breach of contract, there was no constructive dismissal either.
Employment Appeal Tribunal
Ms Allen appealed on two grounds. Firstly, that the Employment Tribunal had not identified the correct pool for comparison. Secondly, that the Employment Tribunal had not provided adequate explanation for why an alternative wider pool, ie other than the Bury store, was rejected.
In relation to the pool for comparison, Ms Allen said that Z and I should not have been included because they worked late on a Thursday on a voluntary basis while she was required to guarantee availability to work Thursday late shifts. The pool for comparison should therefore have been limited to those who were contractually obliged to work the Thursday late shift. The PCP Ms Allen 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 work those shifts.
Accordingly, in relation to the PCP, there was a material difference between Ms Allen’s position and that of Z and I, yet those two men were included within the pool for comparison when the disadvantage arising out of the PCP did not apply to them.
The EAT allowed the appeal on both grounds and remitted the matter back to the Employment Tribunal for rehearing.
It is important to clarify that Ms Allen has not yet succeeded in her indirect discrimination claim. Rather, the EAT held that the Employment Tribunal wrongly failed to address the specific PCP complained of by her which then impacted on the pool for comparison. The decision also illustrates the potential claims that can arise out of handling flexible working requests.
In September 2021, a consultation paper on possible changes to the right to request flexible working was published and for more details see our article here.
Although the consultation period ended in December 2021 there have been no further developments.
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