Under the Sex Discrimination Act, employers sometimes have to provide a "sound business reason" if they refuse a worker's request to work flexibly or part time.

In British Airways plc v Mrs Jessica Starmer, the employment appeal tribunal (EAT) rejected BA's justification that the financial and business consequences of Mrs Starmer's request outweighed her need to work part time.

Mrs Starmer's union, BALPA, instructed Thompsons to act on her behalf.

 

What were the facts?

Mrs Starmer, who trained as a pilot with British Airways (BA), was employed by the company as a co-pilot from May 2001. In March 2004 she asked to halve her hours under the right to request legislation. BA refused, saying that she could only reduce them by a quarter.

Then in September the same year, BA introduced a new policy which stated that anyone who had not flown a minimum of 2000 hours would not be allowed to work less than 75 per cent of full time hours.

Mrs Starmer complained of unlawful indirect sex discrimination as well as a breach of the right to request to work flexibly. The employment tribunal agreed. It said that the "provision, criterion or practice" (PCP) requiring her to work either full time or 75 per cent of a full timer's hours, was to her detriment. Although it applied equally to men, it would affect far more women than men.

It also said that BA had not followed the flexible working procedure within the required timescale when it failed to provide Mrs Starmer with written reasons for refusing her request.

The tribunal rejected BA's justification for the indirect discrimination on the basis that it was resource-led, as well as on grounds of safety (an argument it had not raised when it made its original decision).

 

What did the parties argue at appeal?

On appeal, BA argued that there was no PCP in operation when Mrs Starmer made her application to reduce her working hours. The refusal was a one-off management decision that did not apply to anyone else.

There was therefore no pool to which it applied, and the company could not be said to have indirectly discriminated against her. BA accepted that although the policy introduced in September 2004 constituted a "provision, criterion or practice", this did not apply to Mrs Starmer. As such, the statistics on which the tribunal relied were artificial and irrelevant.

Mrs Starmer pointed out, however, that it was up to her to identify the PCP, and that there was nothing in the law to say that a one-off discretionary decision cannot be a PCP.

BA also argued that Mrs Starmer presented a safety risk in that she was very junior and had not gained enough experience to fly on a 50 per cent contract. She argued, on the other hand, that she had an excellent flying record and, after a performance review on her return from maternity leave, had been found to be completely safe.

 

What did the EAT decide?

Provision, criterion or practice - the EAT said that the requirement for Mrs Starmer to work 75 per cent of the full time hours, and not 50 per cent, may not be a criterion or practice, but it certainly was a provision. It agreed with her that a PCP can be a one-off, discretionary decision which does not have to actually be applied to others.

Disparate Impact - the EAT agreed with the tribunal that the statistics showed that considerably more women than men work part time and that the PCP therefore affected far more women than men.

Justification - the EAT agreed with the tribunal's conclusion that "the Respondent has not given any cogent evidence as to why it would be unsafe or in any way unsuitable for the Claimant...to fly at 50% of full-time".