In the recent case of Allen v Primark Stores Ltd the Employment Appeal Tribunal has confirmed that the pool of comparison in indirect discrimination claims must accurately relate to the precise PCP put forward by the employee.
Indirect discrimination claims
Under the Equality Act, an employee can bring a claim against their employer for indirect discrimination. Indirect discrimination applies to the following protected characteristics:
- Age
- Disability
- Gender reassignment
- Marriage and civil partnership
- Race
- Religion or belief
- Sex and
- Sexual orientation
It is also important to note that indirect sex discrimination may also apply in pregnancy and maternity situations.
Indirect discrimination arises whereby an act or decision, though not intended to treat anyone less favourably, has in practice the effect of disadvantaging someone with a particular protected characteristic. Where the act or decision disadvantages an employee with that characteristic, it will amount to indirect discrimination (unless it can be objectively justified).
PCP and the comparison pool
An indirect discrimination claim must make reference to a provision, criterion or practice (PCP) applied by the employer. The PCP must put, or would put, the employee to a particular disadvantage. To establish a disadvantage, a comparison pool needs to be identified.
The comparison pool will depend on the nature of the PCP being tested and will contain both people who are disadvantaged and people who are not. The PCP must put people who share a protected characteristic at a particular disadvantage. In order to successfully claim indirect discrimination, the employee must have the protected characteristic meaning they are disadvantaged by the PCP.
Allen v Primark Stores Ltd 2022
Ms Allen was due to return to work as a Department Manager at Primark in November 2019, following her maternity leave. She submitted a flexible working request following concern that she would be disadvantaged by the PCP requiring her, as a manager, to guarantee her availability to work late Thursday shifts. Primark did not accommodate Ms Allen’s request and she therefore resigned, bringing a claim for constructive dismissal and indirect sex discrimination.
Ms Allen’s indirect sex discrimination claim was that:
1. Primark applied a PCP that department managers had to guarantee their availability to work Thursday late shifts
2. The PCP put her, as a woman, at a disadvantage because of childcare responsibilities and
3. Ms Allen had been put at this disadvantage
Employment Tribunal
The Employment Tribunal constructed a comparison pool to assess whether Ms Allen had suffered indirect discrimination. The comparison pool included all department managers at the Primark store who could be asked to work Thursday late shifts, save for one manager who had a separate arrangement. The Tribunal, having considered the comparison pool, concluded that the PCP did not put women at a particular disadvantage, as it disadvantaged both men and women. Ms Allen’s claim was rejected, and she appealed to the Employment Appeal Tribunal.
Employment Appeal Tribunal (EAT)
The EAT held that the Tribunal had misconstrued the comparison pool, on the basis that Ms Allen was being asked to work late on Thursday which her childcare did not permit. The key point being that Ms Allen (unlike two of her male counterparts whom the Tribunal included within the comparison pool) was not being asked, rather she was being required to guarantee her availability to work Thursday late shifts.
The EAT held that there was an important distinction between the two male managers being asked to work the late Thursday shifts, compared to Ms Allen who was being required to guarantee her availability. The Tribunal were wrong to include the two managers who were asked to work the Thursday late shifts in the comparison pool, because they did not form part of the precise PCP in Ms Allen’s claim.
The case has been remitted for rehearing.
Importance of the comparison pool
When evaluating the merits of an employee’s indirect discrimination claim, it is essential that the Tribunal accurately determines the precise PCP central to the employee’s claim. The EAT have highlighted that a Tribunal’s failure to accurately determine the PCP can lead to a comparison pool which is “unsafe”.
The comparison pool selected by a Tribunal should be one which appropriately tests the particular discrimination complained of. In this case, that was Ms Allen being required to guarantee her availability to work late shifts on Thursdays, which she claimed disadvantaged her as a woman with childcare responsibilities.
Where the comparison pool does not relate to the precise PCP, the risk is that a Tribunal may make a misinformed judgment when finding whether or not there has been indirect discrimination.
For further information or to discuss the issues raised by this update, please contact our Employment Group on 01276 854663 or employment@herrington-carmichael.com.
This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.
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