Jennifer SkeochThis article examines indirect sex discrimination in light of the recent Employment Appeal Tribunal decision Hughes v Progressive Support Limited.

We have heard much about the devastating effects of the pandemic over the past year. Recent research suggests that women who work have been particularly affected.

This could be due to the difficulty many women face in juggling work and childcare responsibilities. It has also been made worse by the frequent and unpredicted closing of childcare facilities and schools.

The recent Employment Appeal Tribunal decision Hughes v Progressive Support Limited raised the question of childcare and availability to work. Although it was not directly related to the pandemic. Here, the EAT confirmed that an employer applied a provision, criterion, or practice to an employee by requiring them to work certain hours irrespective if they have childcare needs. However, the employer didn’t penalize the employee for failing to comply.

Background

Respondent offers support services to adults with disabilities who need it 24/7. The claimant worked as a support worker. It was agreed that the claimant could be assigned hours of work which took into account her childcare responsibilities after returning from maternity leave. These hours were called “considerate hours”.

Later, the respondent learned that the claimant was working somewhere else. It had previously known she couldn’t work because of her parental responsibilities. It ended the considerate hours arrangement. The respondent allotted hours to the claimant for a period of December 2018 through January 2019, regardless of childcare commitments.

The claimant was not penalized if she did not work the hours that she was offered. However, she did lose her guaranteed hours contract pay. Respondent suggested that claimant may need to change to a zero-hour contract.

Later, the parties reached an agreement that allowed the claimant continue to work under the guaranteed hours contract with considerate hour.

The claimant filed a claim at the Employment Tribunal (ET), claiming that the arrangement was canceled for the specified period. She claimed that the respondent had placed a provision, practice or criterion (PCP) on her, which required her to work any hours she was given. This amount to illegal indirect sex discrimination.

Direct discrimination is when an employer applies a PCP that puts or would put persons with protected characteristics at a particular disadvantage compared to those who don’t share that disadvantage. If the employer can prove that the PCP is proportionate to achieving a legitimate goal, it will be able to defend itself.

The Employment Tribunal’s decision

The ET dismissed the claimant’s claim because the respondent hadn’t subjected her any sanctions when she was unable work the hours given to her during the relevant period. According to her claim, she was not required to work the hours allotted to her.

The ET refused to reconsider the decision. The claimant appealed.

The Employment Appeal Tribunal’s decision

The EAT granted the appeal of the claimant. The EAT ruled that the claimant had to work the hours allotted by the respondent in order to work the full hours she was contractually entitled to. This did not allow her to take care of her childcare responsibilities. The claimant was subject to a requirement.

It was irrelevant that she may not have been subject to a disciplinary sanction for failing to work the hours set. The ET also failed to take into account the financial loss that the claimant suffered due to not being able work the hours promised under the contract. A second message had been sent to her indicating that she might need to switch to a zero-hours contract.

The claimant was therefore subject to a PCP for the relevant period. The EAT didn’t decide whether the respondent had inadvertently discriminated against the claimant based on her sex.

This case was referred to another tribunal to determine (i.e., whether the PCP caused a particular disadvantage for female employees, and (ii., whether it was objectively justified).

Relevant here is the recent EAT case Dobson v North Cumbria Integrated Care NHS Foundation Trust. After failing to follow her employer’s new flexible work requirements, the claimant was dismissed. She cited childcare responsibilities as the reason. The EAT needed to decide if the tribunal was right to reject the claim of indirect discrimination.

The EAT ruled that the Tribunal did not take judicial notice of the fact that women were less likely to be able accommodate certain work patterns because of their childcare responsibilities. This was referred to as the “Childcare Disparity” and a tribunal must consider it if applicable.

Judicial notice allows the existence of childcare disparities to be established without the need for specific evidence. However, it does not mean that a group disadvantage can be made out in order to prove indirect discrimination. It all depends on the relationship between the childcare gap and the PCP.

It may also indicate that there is a higher likelihood of group disadvantage being proved. The matter in Dobson has been referred back to the Tribunal for determination.

What does this all mean?

Many cases involving indirect discrimination can lead to technical judgments. It’s difficult sometimes to see the forest for the trees when it comes down to what the decisions really mean in practice.

Instead of evaluating things retrospectively (or when someone brings a complaint), it is better to think about policies and procedures that you have and any rules that are in place in your organization and how they may impact employees who are protected under the Equality Act. You can do this through an Equality Impact Assessment and consultation with staff and unions (including certain groups or networks) as well as with third-party organisations.

It is important to remember that, even if your PCP creates a disadvantage for one group, it doesn’t necessarily mean that it should be abandoned. Your PCP should be proportionate if it serves a legitimate purpose (such as achieving acceptable standards in conduct, attendance, or efficient running of your business operations). You can present a defense to any claim brought to the Tribunal if there is no less discriminatory method of achieving it.

These tribunals expect employers to have considered these issues when the PCPs are being implemented. They won’t accept a retrospective assessment. If they have evidence that the employer has carefully considered the possible impact on protected groups and determined that it was only necessary to achieve a legitimate goal, they will not interfere with an employer’s PCPs.

We’d love to discuss this topic in greater detail with you.

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