This case looks at how indirect discrimination cases are brought and determined.

The firm’s Principal calls direct discrimination blatant discrimination and indirect discrimination latent discrimination. Latent discrimination is where apparently neutral requirements are put in place but on further examination those requirements impact one sex or race more than others. Those requirements need to be justified by the employer which entails looking at the need for the requirements against the discriminatory impact of those requirements in practice.

Facts

Ms. Cummings was employed as a member of the Cabin Crew for British Airways plc. Each member of the Cabin Crew was entitled to 10 paid ‘rest days’ each month, with the remaining days being worked.

In 2010, the company introduced a policy by where one day of paid leave was removed for each three days an employee took off for unpaid parental leave.

Ms. Cummings brought a claim in the Employment Tribunal, alleging that this policy was indirectly discriminatory towards women, as women were more likely than men to take time off for unpaid parental leave.

The Law

If you’re a regular reader of our case notes, you’ll know that indirect discrimination is where an employer’s policy, criterion or practice (PCP) is applied universally but puts, or would put, a group of people with a certain protected characteristic at a particular disadvantage compared to people without that protected characteristic in circumstances where there is no material difference in each case. Keen readers will also know that an employer can justify such measures if they are a proportionate means of achieving a legitimate aim.

Ms. Cummings argued that BA’s PCP put women at a particular disadvantage when compared to men. She said that this was because more women take parental leave, and were thus more likely to have their amount of paid rest days reduced.

This seems like a fairly common sense argument, the tribunal however did not agree.

The Tribunal Decision

The tribunal decided to compare women who took unpaid parental leave with men who took unpaid parental leave. Since both groups were treated exactly the same by the PCP, they decided that there was no particular disadvantage.  The impact of the requirement was gender neutral according to the Employment Tribunal.

The EAT

His Honour Judge Shanks in the Employment Appeal Tribunal held that the ET had failed to properly consider the nature of the claimant’s argument. He sums it up well below:

“Ms Cumming’s case as put to the Employment Appeal Tribunal (EAT) by Mr Keen is that the PCP put women at a particular disadvantage because women bear the bulk of childcare responsibilities and they were therefore “more likely to apply to take parental leave” and thus to be put to a disadvantage by the PCP.”

In other words, the claimant’s argument was that women in general were more likely to suffer a particular disadvantage when compared to men, as women in general were more likely to “bare the bulk of childcare responsibilities” and have to take the unpaid parental leave, thus reducing their number of paid rest days. Indeed, counsel for the claimant adduced evidence that “24.2% of the women in the crew took parental leave but only 11.9% of the men did so”. Judge Shanks therefore remitted the matter back to the ET for a final decision.

The Takeaway Point

The tribunal’s decision is eagerly anticipated, at least by employment law nerds. It almost appears here as though the original ET felt the need to skirt around the inconvenient truth that more women than men still take parental leave.

Employment Tribunals used to take “judicial notice” of facts so well known that there is no need for them to be proved. One such fact was recognised as such by the judiciary is that women still bear the burden of childcare disproportionately and so need protection from measures that ostensibly apply equally to all but disproportionately impact one sex.

The other takeaway point and one which the Principal had a heated debate with a Regional Employment Judge over twenty years ago is the fact that once a PCP is found to be indirectly discriminatory that finding applies to men and women, so the requirement is removed across the board.