Indirect discrimination – Tribunal failed to consider whether women were put to a particular disadvantage by BA’s parental leave policy

At the end of January 2021 we saw the EAT consider the case of Cumming v British Airways, which looked at indirect discrimination and the correct way to determine whether a “disadvantage” exists.

Under the Equality Act 2010, indirect discrimination takes place when a proviso, criteria or practice (‘PCP’) is applied equally to employees within a business but creates a disadvantage for those who share a particular protected characteristic.

Facts

In 2010 BA introduced a policy whereby for every 3 days of unpaid parental leave crew staff take in a month, they lose 1 day of paid rest that month. In line with the policy, Ms Cumming (who had 2 children) had 1 day’s paid rest deducted when she took 3 days of parental leave in July 2017.  Ms Cumming argued that BA’s policy placed women at a disadvantage and was therefore indirectly discriminatory.

Ms Cumming argued that even though 69% of BA’s staff in the Eurofleet were women and 31% percent were men, the divide between those who actually took parental leave suggested that this PCP disproportionately impacted women. She produced data showing that 24.2% of the female employees took parental leave compared to only 11.2% of the male employees.

It was agreed that the pool for comparison should be male and female Eurofleet crew members with childcare responsibilities. However, the ET found that because the policy applied to everyone in the pool equally (i.e. all crew members who took parental leave, whether male or female, would lose paid rest days) there was no particular disadvantage to women. Instead, there was simply a collective disadvantage to those that had childcare responsibilities.

Appeal

On appeal however, the EAT disagreed. The EAT considered Lady Hale’s comments in Essop v Home Office (UK Border Agency) and Naeem v Secretary of State for Justice and found that there had been an error in the Tribunal’s assessment.

The EAT confirmed that the comparison pool should be chosen in a way that suitably tests the particular discrimination complained about – in this case, sex discrimination. It follows that the pool of comparators should only consist of those actually impacted by the PCP, and then a comparison drawn to see if there was any disadvantage based on a protected characteristic. In this case, the pool should have been comprised of male and female crew members that had children of a relevant age and, therefore, childcare responsibilities. Then the Tribunal should have carried out a comparison to see whether women were indeed disproportionately impacted.

On this ground the EAT allowed Ms Cumming’s appeal and the case has been remitted to a fresh Tribunal.

Impact

This case highlights the importance of ascertaining how the pool of comparators should be determined when trying to establish any differential disadvantage caused by a PCP.  To truly appreciate whether there is indirect discrimination the pool must only be comprised of those impacted by the PCP, as opposed to everybody that the PCP applies to. This enables the Tribunal to determine the true measure of any disadvantage. The EAT pointed out that the determination of the pool is a question of logic.

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Elizabeth Marshall

About Elizabeth Marshall

Elizabeth is a senior associate in the People, Reward and Mobility practice of Dentons' London office, specializing in employment law. Elizabeth works closely with national and international organizations, as well as senior executives, and has more than 10 years of experience advising on the full range of employment law issues, having qualified in 2010.

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