Labour & European Law Review Weekly Issue 487 15 September 2016
Indirect discrimination occurs when an employer applies a provision, criterion or practice (PCP) which discriminates against a worker in relation to a protected characteristic, unless it can be justified. In Dutton v The Governing Body of Woodslee Primary School and anor, the Employment Appeal Tribunal (EAT) held that when assessing justification, tribunals must weigh up the importance of the legitimate aim against the discriminatory effect of the treatment.
Ms Dutton was a teacher at a school for children with special educational needs who required a significant degree of continuity and stability in their lives.
Before going on maternity leave, Ms Dutton made a written request to be allowed to return on a part-time basis. That is, working four days a week rather than five. The school refused her request on the basis that the children required stability. Her appeal against that decision was also turned down.
Ms Dutton made a claim of indirect sex discrimination, arguing that the school had imposed a PCP to work full-time which put her at a particular disadvantage because of her sex.
The tribunal agreed that the PCP of working a full, five-day, week placed Ms Dutton and anyone else sharing her protected characteristic at a disadvantage. It also accepted that the school had demonstrated a legitimate aim. That is, the need for stability and continuity for the children who Ms Dutton was employed to teach. What was in issue was whether the PCP was a proportionate means of achieving that legitimate aim.
Admitting that it had not found it easy to resolve the conflicting needs of Ms Dutton and those of the school, the tribunal held that the school’s decision was a proportionate means of achieving a legitimate aim.
The EAT held that, when carrying out a balancing exercise between conflicting needs, tribunals must weigh up the importance of the legitimate aim against the discriminatory effect of the treatment. To be proportionate, a measure must be both an appropriate means of achieving the legitimate aim and reasonably necessary in order to do so. That meant balancing Ms Dutton’s understandable desire to spend time with her child against the needs of the school in terms of their duties to the vulnerable children in their care.
In this case, the EAT found that although the tribunal had identified the competing factors, it then failed to explain how it had engaged with and tried to resolve those issues, not least because it failed to carry out the assessment it should have undertaken. Although the tribunal had acknowledged that it was not easy to resolve the conflicting issues, it was impossible from the reasons given to see it had carried out the required assessment let alone had done so with the appropriate degree of scrutiny.
The EAT therefore allowed the appeal and remitted the case back to a freshly constituted tribunal to start all over again.