370: Can refusing a flexible working request to accommodate for childcare responsibilities lead to an indirect sex discrimination claim?

The Employment Appeal Tribunal (EAT) considered in the case of Allen v Primark Stores Ltd that in claims for indirect sex discrimination, the pool of comparison must accurately relate to the precise provision, criterion or practice (PCP) that the Claimant is pleading, in determining who the Claimant must be compared against. 

Indirect discrimination may occur where an employer operates a PCP which unintentionally disadvantages a particular group of employees with a protected characteristic (such as sex, age or race) as compared to employees without that characteristic. A PCP will not be discriminatory if the employer can show that it is objectively justified. This is a complex area of law, as illustrated by the recent case of Allen v Primark Stores Ltd in which the EAT held that the Employment Tribunal had used an incorrect comparison pool.

Ms Allen was a department manager at Primark’s Bury store. On her return from maternity leave, she requested flexible working to help with childcare. Primark agreed to some changes to her working pattern. However, her request not to work late on Thursdays was refused because there were insufficient managers available to work that shift. Ms Allen could not guarantee her availability to work late on Thursdays and resigned. She subsequently brought an indirect sex discrimination claim.

Ms Allen argued that Primark had applied a PCP that department managers had to guarantee their availability to work the late shift on a Thursday and that this put women at a disadvantage compared to men as women are more likely to have childcare responsibilities. This PCP also put Ms Allen at a disadvantage because she could not guarantee her availability on Thursday evenings. The comparison pool identified by the Employment Tribunal to assess the impact of this PCP comprised all department managers at the Bury store who could be asked to work late shifts on Thursdays. This pool included two male managers with childcare commitments who sometimes worked the Thursday late shift but could not be required to. The Tribunal concluded that since the two male managers were also put at a disadvantage, the PCP did not put women at a particular disadvantage compared to men. Ms Allen’s claim was therefore rejected.

On appeal, however, the EAT held that the Tribunal had used an incorrect comparison pool and had therefore inappropriately redefined Ms Allen’s complaint. The two male managers had an implied contractual right not to work the Thursday late shift, although they did so occasionally when asked to cover for emergencies. They were therefore not subject to a contractual obligation to make themselves available. In contrast, Ms Allen had been asked to guarantee her availability for Thursday late shifts. The EAT concluded that the men were therefore in a materially different situation and should not have been included in the comparison pool. The PCP in this case related to a requirement to be available for these shifts, not just agreeing to work them from time to time. The Tribunal’s decision was set aside, and Ms Allen’s case was remitted for a re-hearing.

This case illustrates the importance of identifying the correct PCP and pool for comparison in indirect discrimination claims. In order to test the discrimination which is being alleged, the pool should contain individuals who are affected by the PCP and whose circumstances are not materially different. This claim also highlights that employers should be alert to potential indirect discrimination when introducing new policies and procedures, for example, by conducting equality impact assessments to ensure that particular groups are not disadvantaged.

Please do get in contact with our specialist employment team, who will be more than willing to advise on your specific circumstances.