To make a successful complaint of indirect discrimination, claimants have to show that there was a provision, criterion or practice (PCP) which put them at a particular disadvantage compared to another group. In Cumming v British Airways, the Employment Appeal Tribunal (EAT) held that the pool for comparison was the number of female cabin crew members with childcare responsibilities compared to the number of male cabin crew members with childcare responsibilities. 

Basic facts 

BA had a policy whereby crew members who took unpaid parental leave under the Maternity and Parental Leave etc Regulations 1999 would have one paid rest day removed for each three days’ parental leave taken in any monthly roster.

Ms Cumming, a member of the BA Eurofleet crew, claimed that this policy was indirectly discriminatory on the ground of sex because a higher proportion of women took parental leave than men, putting women at a “particular disadvantage” under section 19 of the Equality Act 2010.

She worked out that, of the 2,500 members of Eurofleet, 1,725 (69 per cent) were women and 775 (31 per cent) were men. In terms of taking parental leave, that meant that 24.2 per cent of the women in the crew took the leave, but only 11.9 per cent of the men.

Relevant law 

Section 19(1) states that: “A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s” and it “puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it.”

Tribunal decision

The tribunal held that, in order to ascertain if women suffered a particular disadvantage, it was necessary to compare the women in the Eurofleet air crew with childcare responsibilities with men who had childcare responsibilities.

It held that since both 100 per cent of the women and 100 per cent of the men who actually took parental leave suffered the disadvantage of having rostered rest day/s removed, women did not suffer a “particular disadvantage” as everyone who took parental leave were treated the same.

Ms Cumming appealed to the EAT on the basis that, as women bear the bulk of childcare responsibilities, they were therefore “more likely to apply to take parental leave” and to be put to a disadvantage by the PCP. BA cross-appealed arguing that the tribunal was wrong to find that the policy involved any “disadvantage” at all, but instead was a function of the rostering system.

EAT decision 

Allowing Ms Cumming’s appeal, the EAT noted an obvious problem with the tribunal’s reasoning in that not all those with childcare responsibilities would necessarily apply for and take parental leave, so the proportion of men and women respectively in the identified pool who were put to a disadvantage arising from the PCP were not necessarily “100% all round”. Instead, the relevant pool for comparison was the number of female and male cabin crew who had children of the relevant age and who therefore had childcare responsibilities.  

On that basis, the EAT held that Ms Cummings had established that there was an error of law in relation to the tribunal’s reasoning on “particular disadvantage” and that it failed properly to consider the case she was putting. This issue was therefore remitted to a new tribunal panel for further consideration.

Allowing the cross-appeal, the EAT held that the tribunal had assumed that the application of the PCP involved a “disadvantage” (losing a paid rest day) whereas BA argued there was no disadvantage because the policy just deemed periods of unpaid parental leave to include rest days in the usual proportion. It therefore allowed the cross-appeal and remitted the issue to be considered by a new tribunal panel, who had not previously heard the evidence and who would also consider any justification argument advanced by BA.