Section 19 of the Equality Act 2010 states that it is indirect discrimination to apply a provision, criterion or practice (PCP) in relation to a protected characteristic, such as sex, compared to people who do not share that characteristic. In Allen v Primark Stores Ltd, the EAT confirmed that it was crucial to differentiate between comparators – in this case between those who had to work late and those who volunteered to work late - for the purpose of section 19.
Ms Allen worked as a department store manager for Primark in Bury. Shortly before she was due to return from maternity leave, she submitted a flexible work application to change her contractual hours which included a requirement for all store managers to work late shifts. As she had sole responsibility for her baby with only limited support from her mother, she said she could no longer guarantee her availability on Thursdays.
Although there were five other department managers and only two had to be present on any one shift, three were not available on a Thursday. Primark concluded that it could not accommodate her specific request because it could not guarantee cover for sickness and holidays. She resigned claiming indirect sex discrimination (among other things) on the basis that Primark had applied a PCP that department managers had to work late shifts, which put women at a particular disadvantage compared to men.
The tribunal held that the pool for comparison consisted of the department managers and trainee managers within the Bury store who could potentially be asked to work a late shift on Thursdays, with the exception of one manager, Piotr, who already had his own flexible working arrangement.
Having identified that as the correct pool, the tribunal then found that two men (Zee and Imran) were disadvantaged by the requirement to work late on Thursdays because they had childcare responsibilities, but only one woman (Ms Allen). It therefore concluded that women could not be said to be at a particular disadvantage by the requirement.
Ms Allen appealed on the basis that not only had the tribunal identified the wrong pool for comparison, but it had also not adequately explained why it rejected an alternative, wider pool. As the PCP meant she had to guarantee her availability to work late shifts on Thursday, the pool for comparison ought to have been limited to those who were contractually obliged to work them, as opposed to those who did so voluntarily.
Upholding the appeal, the EAT held that there was a material difference between the position of Ms Allen and that of Zee and Imran, as she was required to guarantee her availability to cover some of the Thursday late shifts, whereas they were not. The tribunal had failed to differentiate between staff such as Zee and Imram who might be asked to work late and Ms Allen who was required to work the late shift on a Thursday.
That said, the EAT, was “not a point of merely academic interest: for an employee who is having to balance work and caring responsibilities, the question whether they are required to guarantee their availability … or whether they might sometimes simply be asked to help out, is likely to be of considerable importance. By thus failing to properly engage with the particular PCP in issue, the [tribunal] allowed itself to include within the pool for comparison two individuals to whom the disadvantage to which the PCP gave rise did not apply”.
The EAT remitted the case for re-hearing.