300: EAT provides clarity on pools for comparison in claims of indirect discrimination

Indirect sex discrimination may arise where a policy applied to all employees is shown to put women or men at a particular disadvantage. The policy must also put the employee in question at that disadvantage. However, employers can justify indirect sex discrimination by showing that the policy is a proportionate means of achieving a legitimate aim. Indirect discrimination claims can often be complex, largely because of the comparative exercise required in showing that one group is disadvantaged when compared to another. In the recent case of Cumming v British Airways plc (BA), the EAT had to consider whether the Employment Tribunal had used the correct pools for comparison in a dispute over the discriminatory effect of a parental leave policy.

Ms Cumming was a member of BA’s Eurofleet aircrew. In a normal working month, full-time crew were rostered with ten paid rest days and 20 or 21 working days depending on the month. BA had a policy that crew members who took parental leave would have one paid rest day removed for each three days’ parental leave taken in a monthly roster. The policy was designed to remove a perceived unfairness which could result, for example, from an employee being able to take three weeks parental leave in a month and having the remaining ten days in the month rostered as paid rest days. Ms Cumming argued that the policy of removing rest days was indirectly discriminatory towards women, including herself, because a higher proportion of women would take parental leave than men.

The Employment Tribunal held that the parental leave policy did not put women at a particular disadvantage when compared to men. The pools for comparison were men with childcare responsibilities and women with childcare responsibilities within BA’s workforce. Since 100% of the women and 100% of the men who actually took parental leave suffered the same disadvantage of having rostered rest days removed, the Tribunal concluded that there was no particular disadvantage to women.

On appeal, the EAT held that there was a problem with the Tribunal’s reasoning, because not all BA employees with childcare responsibilities would necessarily apply for and take parental leave. The proportion of men and women put to a disadvantage by the policy was not therefore 100% all round. There was statistical evidence to show that more female than male aircrew took parental leave and therefore more women were adversely impacted by the policy. The correct pool for comparison was therefore not crew members in general, but male and female crew members who have childcare responsibilities. The case was sent back to a fresh Tribunal to consider whether the policy put staff with childcare responsibilities at a disadvantage and whether women in that group were put at a particular disadvantage when compared with men.

Even if BA’s parental leave policy is found to be indirectly discriminatory, BA may still be successful in showing an objective justification for it. However, this case is a timely reminder to employers to ensure that all policies and practices are scrutinised to ensure that they do not have an unintended discriminatory impact.