Indirect discrimination and comparison pools
The Employment Appeal Tribunal (EAT) has confirmed that the pool of comparison for an indirect discrimination claim must accurately relate to the precise provision, criterion or practice (PCP) pleaded by the claimant in Allen v Primark Stores Ltd.
The claimant worked for Primark Stores Ltd as a department manager in the store in Bury. When she returned from maternity leave she requested flexible working for childcare reasons. Primark implemented some flexibility but refused to agree that she would not have to work Thursday late shifts. The claimant brought a claim for indirect sex discrimination, arguing that Primark applied a PCP that department managers had to guarantee their availability to work Thursday late shifts, and that this PCP put women at a disadvantage because of childcare responsibilities.
In assessing the discriminatory impact of the PCP the tribunal constructed a comparison pool which included all department managers in the Bury store who might be asked to work Thursday late shifts. This included two department managers, Zee and Imran (two men), who were not contractually obliged to work the late shifts but did so in emergencies. The tribunal held that the PCP affected two men and one woman (the claimant), and therefore did not put women at a disadvantage.
On appeal the EAT disagreed. It found that, in constructing the pool, the tribunal had redefined the claimant's complaint. The PCP she was relying on was not simply that she was being asked to work Thursday late shifts, but that she was being required to guarantee her availability to do so. As Zee and Imran were not subject to the availability requirement they were in a materially different situation to the claimant. The tribunal had failed to engage properly with the PCP and allowed itself to include within the comparison pool two individuals to whom the disadvantage to which the PCP gave rise did not apply. The case was remitted to the tribunal for reconsideration.
Take note: The decision in Allen shows the importance of considering the correct pool of comparison by paying close attention to the PCP that the claimant alleges is indirectly discriminatory.