indirectly discriminate against women

Hello and welcome back to our case law update. We apologise for the lack of cases over the last fortnight, unfortunately supply of judgments has not kept up with eager demand.

Last time, we looked at sex discrimination and this week, due to a lack of new judgments, we will also be looking at sex discrimination. This week’s case is somewhat similar to our last case of the week,  and, despite being a tad repetitive, highlights the importance of the issue and reinforces the EAT’s stance.

Today’s question:

Can a provision, criterion or policy (PCP), that prevents staff from working part time, indirectly discriminate against women?

Ms Dutton, the Claimant, was a teacher for Woodslee Primary School, the Respondent. The Respondent was a school that specialised in teaching children with special educational needs and it was commonly held that the children needed continuity and stability in their learning environment.

The Claimant became pregnant and, before starting her maternity leave, requested to work 4 days a week upon her return to work. The Respondent rejected this request highlighting the need for stability in the children’s education. The Claimant appealed and after this was rejected she initiated tribunal proceedings.

The ET held that the PCP that prevented part time working was discriminatory against woman in a similar situation to the Claimant (working parent with young children). However, it held that the PCP was a means to achieve the aim of providing stability and continuity for the children. The ET found that this PCP was a legitimate means of achieving its aim and the claim was dismissed.

The Claimant appealed and the EAT allowed the appeal. It held that the ET had not properly determined whether the Claimant’s request for a four day week was breaching the need for a stable learning environment. It held that the case should be remitted back to Tribunal to decide whether the PCP was fair.

The takeaway point:

Yes, a PCP that prevents part time working can be discriminatory. Similar to last week this will be decided on a case by case basis as the nature of the PCP, size of the employer and facts of the case will all impact the decision.

What this case and the one before it suggest is that even in scenarios where the PCP seems to be quite legitimate the EAT will always want to ensure that an employer avoids any discrimination, indirect or otherwise.

To read more on sex discrimination please click here. If you enjoyed this post, please share it.

Furthermore, to compensate for the delay since the last Case of the Week, there will be a second update this week, with the monthly newsletter to come on Friday. There will even be a post-Olympics sportswear promotion for you!