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What Is the Importance of Comparison Pools in Indirect Discrimination Claims?

on Friday, 29 April 2022.

The Employment Appeal Tribunal (EAT) has highlighted the importance of accurately defining comparison pools in indirect discrimination claims.

Flexible Work Request

Ms Allen was employed by Primark as a Department Manager. Following her maternity leave she made a flexible work request to change her hours in order to accommodate her childcare responsibilities.

The standard terms and conditions for Ms Allen's role required her to guarantee her availability to work late shifts. In Ms Allen's case, Primark agreed to part of Ms Allen's request, but said she would need to continue to guarantee her ability to work the Thursday late shift, due to insufficient cover available from other managers on Thursdays.

Ms Allen appealed the outcome of her flexible work request but her concerns were not resolved. Having exhausted the internal process she resigned, pursuing Employment Tribunal claims for constructive unfair dismissal and indirect sex discrimination.

Childcare Responsibilities and Late Working

Ms Allen claimed the requirement for department managers to guarantee their availability to work late shifts amounted to provision, criterion or practice (PCP) that put female department managers (who were more likely to have childcare responsibilities) at a disadvantage compared to men. Ms Allen argued it was impractical to work evenings whilst having childcare responsibilities, and that the disadvantage created by the requirement could not be justified as a proportionate means of achieving a legitimate aim.

In response, Primark denied the requirement for staff to guarantee their availability to work late shifts placed women at a substantial disadvantage compared to men.

Comparison with Male Colleagues

Indirect sex discrimination claims are group-based. This means the PCP must put people who share a protected characteristic (in this case women) at a particular disadvantage. In order to establish a group disadvantage, a comparison pool will usually need to be identified. The Equality Act requires the comparison pool to be made up of people who - apart from the protected characteristic in issue - are in the same situation as the claimant.

Within the comparison pool, the Employment Tribunal included all department managers in Ms Allen's store who might be asked to work Thursday late shifts. The pool included two male managers who worked Thursday late shifts only in emergencies, and who did not therefore, have to guarantee their availability for every Thursday late shift. Having constituted the pool in this way, the Tribunal found two men and one woman was affected by the PCP. On this basis the Tribunal concluded Ms Allen was not put at a particular disadvantage compared to her male colleagues.

Ms Allen appealed to the EAT.

Providing Emergency Cover Is Not the Same as Guaranteeing Availability

The EAT allowed Ms Allen's appeal. It disagreed with the way the Tribunal constructed the comparison pool. Ms Allen was not simply asked to work Thursday late shifts in emergencies, in the way her male colleagues were. She was instead required to guarantee her availability. The two male colleagues were in a materially different situation to Ms Allen and therefore should not have been included in the comparison pool. The Tribunal should have considered whether there was an element of compulsion in any requests made of the two male colleagues to provide cover for the Thursday late shift.

The EAT set aside the Tribunal's decision and the case has been remitted for a re-hearing.  

What This Case Means for Employers?

This case highlights the importance of a correctly defined comparison pool in indirect discrimination claims. Whilst this case relates to Tribunal proceedings, there is a practical benefit to employers of considering the same issues in the context of flexible work requests. This will help employers assess the fairness of a particular work requirement, taking into account its impact on groups of staff sharing a relevant protected characteristic.

For more information on comparison pools in indirect discrimination claims, please contact Ellie Boyd in our Employment team on 07393 148143, or complete the form below.

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