This was the all important question asked recently in
England's Court of Appeal.
Whether you are a female part-time worker, or an employer
responsible for employing female part-time employees, you may be
very interested to learn of a recent UK Court of Appeal decision,
particularly if your business operates a voluntary occupational
In Copple & Ors v Littlewoods Plc  it was held that
female part-time workers who had previously been excluded from
Littlewoods' occupational pension scheme had suffered indirect
sex discrimination. In a mass party action which involved over one
hundred women, it was alleged that they had all suffered
discrimination at the hands of the well-known organisation by being
denied access to its pension scheme during previous years (the
'closed periods'); it was a requirement that employees work
a sufficient number of hours per week before being eligible to
join, thereby making it difficult for those only working 12 hours
Littlewoods has since changed its policy concerning eligibility
for the pension scheme to include all employees but has had to
concede that during the closed periods its female part-time
employees had suffered indirect sex discrimination which could not
be justified. To provide different rules for part-timers and
full-timers without justification is a breach of equality. Denying
its female part-time employees a right to participate in the
occupational pension scheme was a detriment to those affected.
So despite accepting that it has indirectly discriminated
against these women on the grounds of their sex, why was
Littlewoods successful on 3 separate occasions? Littlewoods argued
before the Employment Tribunal, the Employment Appeal Tribunal and
now, recently, the Court of Appeal, that despite its detrimental
treatment of these women, they had in fact suffered no loss and
should not be compensated. To some this may sound harsh but not
according to the Court of Appeal.
Littlewoods was able to apply an 'opt out' principle
claiming that there was no evidence to suggest that any of the
affected women would have joined the pension scheme even if they
had been eligible during the closed periods. The organisation
adopted an approach whereby it assumed that if a woman had failed
to join the scheme within three months of becoming eligible to do
so, then it could correctly assume that she would not have joined
it earlier, even if she had been eligible by working the requisite
numbers of hours. It was not appropriate to award any financial
compensation to the women, or grant a declaration of entitlement to
retrospective membership of the pension scheme, as no women could
be shown to have suffered a loss as a result of the discrimination.
All three Courts agreed and hailed Littlewoods' approach as
being pragmatic and correct.
The Court of Appeal felt that the approach was in-line with
previous European Court decisions which confirmed that equal
treatment does not necessarily mean more favourable treatment;
Littlewoods could not be expected to compensate those affected
employees for denying them the right to join the pension scheme
when there was nothing to suggest that the women would have joined
in any event - to give them retrospective membership would be a
favourable benefit and, essentially, they would be in better
position. Using powerful words, Lord Justice Elias stated "The
reason why none of the women since joined the pension scheme was
not based on discrimination, but one of choice...human experience
tells us that if a woman really had wanted to join the scheme, one
might have expected her to join once she became eligible to do
so". To join a pension scheme some months after becoming
eligible to do so could not support the contention that the
affected employees would have joined during the closed period.
The important lesson here is that if you are a Channel Islands
business employing full and part-time employees, you need to be
mindful that any treatment which is different between those
employees could be discriminatory; if so, you could be liable to
pay compensation if the affected staff can show they have suffered
a loss as a result!
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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