The recent Employment Appeal Tribunal (EAT) judgment in Marston Holdings Ltd v Mrs A Perkins addresses pivotal issues concerning indirect sex discrimination under the Equality Act 2010 and unfair dismissal under the Employment Rights Act 1996. This case involved Mrs. Perkins, a manager at Marston Holdings, whose employment was terminated amidst disputes over a newly introduced travel requirement.

Mrs Perkins, the Head of Enforcement was employed by Marston Holdings since 2005. In 2021, the company underwent restructuring, which included adding a travel component to her role. Mrs. Perkins, as the primary caregiver for two young children, expressed difficulty in meeting the travel requirement and suggested remote working alternatives. Despite this, Marston Holdings persisted with the new travel demand, leading to her dismissal, framed as a redundancy, in 2022.

Mrs Perkins asserted that the travel requirement disproportionately affected women with childcare responsibilities, resulting in indirect sex discrimination, and challenged the fairness of her dismissal.

The Employment Tribunal (ET) upheld both claims. It ruled that the travel requirement was a provision, criterion, or practice (PCP) that placed women, particularly those with primary caregiving roles, at a disadvantage. The ET also found Mrs. Perkins’ dismissal unfair, noting the employer failed to justify the travel requirement as a legitimate and proportionate necessity for business operations.

The EAT overturned the ET’s decision on both counts. It identified errors in the ET’s approach to group disadvantage in the indirect discrimination claim and procedural flaws in how the unfair dismissal claim was handled.

The ET was not able to distinguish whether the disadvantage was a result of the travel requirement or was specific to Mrs Perkins’ circumstances. Furthermore, the ET should have considered if the PCP disadvantaged a larger group of women, not just Mrs Perkins.

While Mrs Perkins initially accepted redundancy as the reason for dismissal, the ET unilaterally reaffirmed the claim, determining that there was no genuine redundancy without adequately indicating the parties. The EAT asserted that this approach undermined procedural justice.

Tribunals may acknowledge societal disparities (e.g. childcare responsibilities disproportionately borne by women). However, establishing group disadvantage requires evidence of the PCP’s impact on the relevant workforce group, not just assumptions.

Employers imposing potentially discriminatory PCPs must demonstrate their need through evidence and demonstrate they proportionately achieve legitimate objectives without feasible alternatives.

 

This case highlights the importance of rigorous evidential and procedural standards in employment litigation, particularly where discrimination overlaps with broader societal norms.