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Childcare and Sex Discrimination

In a recent case decided by the Employment Appeal Tribunal the tricky issue of childcare and sex discrimination arose in a case against the retail chain Primark. It is an interesting reminder of the types of issues that can arise when trying to arrange working hours and arrangements among staff.

The Law

Indirect discrimination is defined by section 19 Equality Act 2010 which states:

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if—

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

The Facts

The employee in this case, Miss Allen, was employed by Primark Stores Limited as a Department Manager at their store in Bury and had been employed since August 2011.

The key issue in the dispute that arose was that Primark include in their standard terms for department managers that they must guarantee their availability to work late shifts.

Miss Allen was due to return from maternity leave and being the sole carer for her baby she was concerned about this requirement in her employment terms and made a flexible working application.

When the issue of her hours could not be resolved Miss Allen resigned and made a claim for constructive unfair dismissal and indirect sex discrimination.

In their defence Primark stated that they could be flexible and remove the late shift requirement for all but one day (a Thursday) as 4 out of 6 Department Managers were not flexible to cover the late shift on this day.

Miss Allen claimed that the requirement to guarantee availability to work late shifts was a provision, criterion or practice (known as a PCP) which “put women (a) who were department managers at that 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 childcare responsibilities.”

Whilst Primark accepted that it was a PCP it denied that it placed women at a substantial disadvantage and in any event they said it was a proportionate means of achieving its legitimate aims.

Miss Allen’s claims were unsuccessful at the Employment Tribunal as the Tribunal decided that based on the pool of department managers at the store, “Females were not placed at a disadvantage compared to males in the pool.”

Miss Allen appealed against the outcome on the basis that the Employment Tribunal had incorrectly identified the pool for comparison with her.

The Decision

In its conclusion the Appeal Tribunal stated that “The pool of those upon whom the effect of the PCP is evaluated must thus be populated by persons who – apart from the protected characteristic in issue – are in circumstances that are the same or not materially different.”

They decided that the Employment Tribunal had been wrong in their approach to the determining what the provision, criterion or practice was, namely the requirement of Miss Allen to guarantee her availability to work a late shift on a Thursday and in turn had not looked at the correct comparison pool.

The case has been sent back to the Employment Tribunal to reconsider the correct PCP and pool for comparison to decide if it is in fact indirect discrimination.

Points to note

This case has been sent back to the Employment Tribunal to reconsider and therefore there is no final conclusion on whether the requirement for Miss Allen to guarantee her availability for a late shift is indirect sex discrimination, it does however raise an interesting and reoccurring question about childcare responsibilities and hours.

Although things are changing it is still the case that women earn less than men and women tend to be the primary care giver for children. In male and female relationships, it is still most common for the man to remain working full time and/or have less expectation of flexibility than the female in the relationship. This in turn does have an impact on women at work, and when companies such as Primark have standard terms that rigidly apply terms and hours they are (whether discrimination in law or not) excluding women from many roles.

Applying employment terms without exceptions puts barriers in place for women to even apply for more senior roles. I see it time and again, employers who state you cannot work part time and be a manager, or you must be available to work 9 – 5 with no flexibility if you are to be promoted and succeed in a company.  

Whether Miss Allen wins her case or not hopefully it serves as a reminder of the impact these sorts of rules about hours can have on the female workforce.

N Allen v Primark Stores Limited – Employment Appeal Tribunal 2022

You can read the full judgement HERE

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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.

The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.

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