Importance of provision criterion or practice highlighted when identifying a comparison pool in an indirect discrimination claim

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In Allen v Primark Stores Ltd [2022], an indirect sex discrimination case against Primark, the EAT confirmed the importance of the provision criterion or practice pleaded by an employee when determining who they must be compared with to assess their claim

Natasha Allen was a department manager at Primark Stores Limited, whom she had worked for since 2011. Ms Allen went on maternity leave and intended to return to work in November 2019.

Ms Allen had sole responsibility for her child, with some limited support from her mother. Before her return to work, she made a flexible working request to change her contractual hours.

Primark’s standard terms and conditions for department managers include a requirement that managers guarantee their ability to work late shifts. This provision criteria or practice (PCP) was of particular concern to Ms Allen.

Primark sought to accommodate Ms Allen, but she would still be required to work late shifts on Thursdays due to insufficient flexibility in the management team. Ms Allen appealed the outcome of her flexible working request, but this was refused.

Ms Allen resigned in September 2019 and brought Employment Tribunal claims, including for indirect sex discrimination.

Ms Allen explained in her sex discrimination claim that there were eight managers at the store. Whilst other staff had contracts which stated fixed shift patterns, managers were required to work one of four shifts each day over a five day period, including the “late shift” which ran from 10.30 am to 8.30 pm. The late shift was of concern to Ms Allen because of her childcare responsibilities.

Ms Allen argued that the requirement for department managers to guarantee availability to work late shifts amounted to a PCP which “put women (a) who were department managers at …[her] workplace or (b) who were department managers in the wider workforce … at a particular disadvantage compared to men. The particular disadvantage was the difficulty or practical impossibility of working evenings while having child care responsibilities”.

Ms Allen claimed that she had been put to that disadvantage and that the PCP was not a proportionate means of achieving a legitimate aim.

Ms Allen went on to clarify that her claim related to the specific PCP of having to guarantee her availability to work the Thursday late shift.

In an indirect sex discrimination claim, a claimant must show that the PCP put not just them at a particular disadvantage, but also that it places people who share their sex at a particular disadvantage. Establishing this group disadvantage, usually involves identifying a “pool” of individuals for comparison.

The Employment Tribunal considered who the staff affected by the PCP were, and identified the pool for comparison. This was comprised of department and trainee managers at the store who would potentially have to work the Thursday late shift, regardless of convenience. It considered whether there was a correlation between this pool and sex discrimination.

The Tribunal found that of those in the pool who were disadvantaged by the requirement to work a late shift on a Thursday because they had childcare responsibilities, two were men and one was a woman (Ms Allen). It therefore held that “women were not at a particular disadvantage and therefore group disadvantage is not made out”.

Since “[f]emales were not placed at a disadvantage compared to males in the pool”, Ms Allen’s claim of indirect sex discrimination had not been made out and therefore failed.

Ms Allen appealed, and the case went to the EAT.

The EAT upheld Ms Allen’s appeal. It found that the Employment Tribunal had redefined Ms Allen’s complaint: the PCP identified by Ms Allen was that she was “being required to guarantee her availability to work” Thursday late shifts, not simply “being asked to work” such shifts.

The EAT considered the context and circumstances and found that there was a material difference between the position of Ms Allen, who was “required to guarantee her availability to cover some of the Thursday late shifts (even if the precise number could not be specified)”, and the male colleagues the Employment Tribunal had compared her to, who might in fact have worked some Thursday late shifts but “were not subject to the same requirement of availability”.  This was “not a point of merely academic interest: for an employee who is having to balance work and caring responsibilities, the question whether they are required to guarantee their availability … or whether they might sometimes simply be asked to help out, is likely to be of considerable importance”.

The Employment Tribunal was found to have failed to properly engage with the particular PCP at issue, and consequently included within the pool for comparison “two individuals to whom the disadvantage to which the PCP gave rise did not apply”.

The EAT set aside the conclusions of the Employment Tribunal entirely, and remitted the matter for re-hearing.

This case highlights the importance of a claimant’s PCP when identifying a comparison pool in an indirect discrimination claim. The pool must precisely reflect the PCP.