The Equality Act 2010 provides protection against unlawful direct and indirect discrimination, harassment, and victimisation for the protected characteristic of ‘sex’.
Indirect sex discrimination occurs when a provision, criterion or practice (PCP) is applied universally and that PCP:
- puts, or would put, a group of people of one sex at a particular disadvantage compared to people of the other sex in circumstances where there is no material difference in each case
- puts, or would put, an individual employee at a disadvantage
- cannot be shown to be a proportionate means of achieving a legitimate aim.
To demonstrate that a PCP is a proportionate means of achieving a legitimate aim, the aim itself must be legitimate, and must correspond with a real, objective business need which, if not met, would mean the business would suffer a disadvantage.
To be proportionate, the PCP must:
- actually contribute to the pursuit of the legitimate aim
- be within the limits of what is absolutely necessary to achieve the business aim and there is no other less discriminatory way to achieve it
- deliver benefits to the business which far outweigh the discriminatory effect on the individual.
The claimant was employed as a Band 5 nurse and worked amongst a team of nine women and one man. She had previously made a flexible working request which was successful because she had to take care of her three children, two of whom are disabled. The flexibility enabled her to work 15 hours a week over two fixed days.
Her employer, having conducted a review of her working pattern in 2013, agreed that her childcaring responsibilities meant that her existing working arrangement could continue. However, in 2016, her employer adopted a new policy which meant that flexible working arrangements were required to be reviewed.
The claimant was later asked to work occasional weekends once a month, but she explained that, given her situation, she would not be able to accommodate a change in her working pattern. The claimant, therefore, refused the suggested working pattern and filed an unsuccessful grievance complaint. Her appeal against this decision was also unsuccessful.
She was offered a fire and re-hire arrangement in 2017 based on new terms which required her to work additional days. A notice of dismissal was given to the claimant after she refused re-engagement under those terms. Her appeal against this dismissal too was unsuccessful and so she brought a claim for unfair dismissal and indirect sex discrimination to the ET.
Her claim was dismissed by the ET on the basis that the PCP used by her employer was their requirement for all staff to work more flexibly and that it applied to both men and women. It, therefore, could not be said that the PCP disadvantaged the claimant more because of her sex, especially because all other members of her team were able to accommodate the new requirement.
It was further decided that her employer was pursuing a legitimate aim by making the team more flexible.
On forming its decision, the EAT found that the pool for comparison should not have been limited to just the claimant’s team. Rather, the claimant’s situation should have been compared to all community nurses within the particular NHS Trust where she was employed. By widening the pool of comparison, it was found that there was evidence of group disadvantage.
Furthermore, the EAT noted that the ET should have considered the fact that generally women are, more often than men, not able to accommodate certain work patterns due to their child-caring responsibilities.
The EAT took the view that in a case of this type, all the relevant circumstances must be examined, and each case would have to be considered taking into account all the relevant facts. This case sets the precedent for future discrimination claims of its type that it must be taken into consideration that women tend to have more childcaring responsibilities than men.
For organisations to justify indirect discrimination, the PCP must be necessary to meet a legitimate business need. To be proportionate, the PCP must contribute to achieving the business aim, go no further than is necessary, and the business benefits must far outweigh the discriminatory effect on the individual.