News & Insights

Flexible working refused

In a recent case, that received attention from the mainstream media due to the high profile respondent involved and the sex discrimination alleged, the Employment Appeal Tribunal (EAT) considered the correct pool for comparison in an indirect discrimination claim, highlighting the importance of engaging with the precise provision, criterion or practice (PCP) that is pleaded by the claimant.

The case concerned Ms Allen who worked as a department manager for clothes retailer, Primark in Bury. Following her return to work from maternity leave in November 2019, she made a request for flexible working arrangements due to her childcare needs. She had sole responsibility for her child. Primark had a policy for department managers whereby they need to guarantee they are available to work late shifts. Primark granted some of Ms Allen’s request but did not accommodate her request to miss late shifts each Thursday.

The Bury store had six department managers. Only two of them were able to work late on Thursdays. One of the managers had his own flexible arrangements for that day and two other males also had childcare commitments and rarely worked the Thursday late shift. Primark felt that due to the length of time these two males had these arrangements in place, they would amount to an implied contractual term. Due to the lack of numbers available on Thursdays, Primark believed they would not have enough cover in case of holidays or sickness if Ms Allen was also granted this flexibility each Thursday.

As a result, Ms Allen brought a claim for indirect sex discrimination. Her argument was that Primark applied a PCP that managers were required to guarantee availability to work late shifts on Thursdays, that this PCP put women at a disadvantage, and that it put her at that disadvantage. The employment tribunal rejected the indirect discrimination claim after concluding that two men with childcare commitments were also disadvantaged by Thursday late shifts. Ms Allen appealed to the EAT.

The EAT upheld the appeal as it found that the tribunal had redefined Ms Allen’s complaint. The PCP that Ms Allen identified was not that she was “asked” to work late Thursday shifts but that she had to guarantee her availability. Other managers in the pool, including the two men with childcare commitments, were not subject to such a strict requirement.

The EAT felt the tribunal had failed to engage properly with Ms Allen’s PCP and had allowed itself to include within the pool for comparison individuals that were not negatively impacted and to whom the PCP was not applied in the same way. There were material differences between the individuals in the pool, as demonstrated by the difference between being “asked” to carry out a shift compared to a compulsion to carry out a shift. The case has been set aside and there will be a rehearing in due course.

This case highlights the complexities, difficulties and risks around the identification of appropriate comparison pools. Employers should take care when reviewing and implementing policies that they do not adversely impact certain groups of employees in an unlawful way. If you are concerned that an existing policy or new set of rules could have a discriminatory impact then we would be happy to advise you on your scenario.