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Getting the comparison pool right in indirect discrimination cases

View profile for Paul Burton
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Getting the comparison pool right in indirect discrimination cases

In this article, Employment Partner Paul Burton takes a look at a recent case where indirect sex discrimination was claimed.

The claimant argued that certain working hours at Primark put women with childcare responsibilities at a disadvantage.

Paul looks at the outcome of the case and discusses the implications for both indirect discrimination claimants and respondents.

Allen v Primark Stores

In Allen v Primark Stores Ms Allen was employed as a department manager and, having been on maternity leave, planned to return to work in November 2019. 

As is often the case, she made an application for flexible working, being concerned about having to work late shifts as a single parent. 

Primark did not agree to all of her request, citing the fact they did not have enough flexibility in the management team to accommodate the request for a Thursday evening.

What was the claim?

Ms Allen resigned and claimed constructive unfair dismissal and indirect sex discrimination.

She alleged it was a ‘provision, criterion or practice’ (PCP) to require her to work late on a Thursday and that put women with childcare responsibilities at a disadvantage. 

Primark accepted the PCP had been applied but denied any disadvantage or, in the alternative, if there was a disadvantage, they could justify it as a proportionate means of achieving a legitimate aim.

What did the tribunal decide?

The Tribunal decided the relevant comparison pool to be department managers within the store.

Based on the proportion of men and women in the identified pool that were disadvantaged by the requirement to work a late shift on a Thursday the tribunal found that women were not at a disadvantage. Ms Allen appealed.

What did the EAT rule?

Ms Allen succeeded with her appeal, the Employment Appeal Tribunal (EAT) deciding that the pool should have been those managers who were actually being required to guarantee their availability for shifts.

This would have removed some of the men from the pool and hence led to a disadvantage for women.

The Claimant's PCP was actually that she was being required to guarantee her availability for those shifts.

The EAT therefore judged the Tribunal’s decision to be unsafe and sent the case back for a re-hearing.

A specialist Employment Solicitor’s View

Paul Burton, Employment Partner at Frettens, says: “We are often asked by clients to assist them in either claiming or defending cases involving indirect discrimination. 

Working out the correct PCPs and comparison pools is a notoriously difficult task and it is not surprising that litigants-in-person particularly struggle with it. 

What’s our advice?

Paul continues: “This case demonstrates that even experienced judges sometimes get it wrong. 

We do strongly advise clients to seek advice when it comes to claiming or defending indirect discrimination cases for this reason.”

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