Indirect discrimination remains an important consideration for businesses who are looking to implement new workplace policies or ways of working. Indirect discrimination occurs where a policy or practice is applied to everyone, but the effect of that policy or practice is that it places individuals with a particular protected characteristic at a substantial disadvantage.
Judicial notice is a legal doctrine that allows Employment Tribunals to recognise well known facts without one of the parties having to prove that it's true. One well-known fact that the courts have consistently recognised as being true is that women are more likely than men to take the primary role in bringing up children. This has become known as the 'childcare disparity'.
In the recent case of Marston (Holdings) Ltd v Perkins, the Employment Appeal Tribunal (EAT) handed down an important decision that sheds new light on how Tribunals should assess indirect discrimination claims that involve the childcare disparity.
Background
Ms Perkins was employed by Marston Holdings Ltd (Marston) as Head of Enforcement (Local Taxation), and her place of work in her contract of employment was in Helmshore in Lancashire. Following a company restructure, she was informed that her role would now require travel to other office locations. Most notably to Epping, which was significantly further from her home.
As a mother of two young children, Ms Perkins complained that the increased travel requirements would be difficult for her to manage alongside her childcare responsibilities. She would have to leave for work earlier in the morning and would get back home later in the evening. Whilst Ms Perkins was prepared to accept some travelling, she wasn't prepared to travel significant distances because of the impact this would have on her childcare responsibilities. Despite these concerns, Marston proceeded with amending Ms Perkins' job description to include "travel as and when required." She continued to push back, but Marston eventually made Ms Perkins redundant.
Ms Perkins brought claims for unfair dismissal and indirect sex discrimination.
Employment Tribunal
The Employment Tribunal ruled in Ms Perkins' favour in both claims. In the unfair dismissal claim, the Tribunal held that it was not a genuine redundancy situation, and the real reason for terminating Ms Perkins' employment was because of the travel issue.
Having taken judicial notice of the childcare disparity, the Tribunal determined that imposing the travel requirement on Ms Perkins was indirect sex discrimination because of the impact this would have on her childcare responsibilities. Whilst objective justification is a defence to indirect discrimination claims, the Tribunal held that in this case Marston could not objectively justify their decision.
Marston appeal to the EAT.
EAT
On appeal Marston argued that the Employment Tribunal had placed too much weight on the general concept of "childcare disparity" and it hadn't properly analysed whether the travel requirement had actually disadvantaged women.
The EAT allowed the appeal. Whilst the childcare disparity establishes that women are more likely than men to have primary childcare responsibility, the childcare disparity does not extend to the automatic assumption that travelling significant distances disadvantages women. The EAT held that in some cases it might be obvious that women are being disadvantaged, for example there was a requirement to work nights, but in this instance the Employment Tribunal failed to consider at all whether travelling significant distances actually disadvantages women. The finding of indirect sex discrimination was therefore overturned.
Comment
The Marston case highlights that, whilst societal trends can be recognised, they do not automatically prove that a particular workplace policy is indirectly discriminatory in every context.
Tribunals can still take judicial notice of the childcare disparity, i.e. they can still accept the proposition that women are more likely than men to be primarily responsible for childcare, but this cannot be used as a substitute for properly assessing the impact of a policy and whether it creates a genuine disadvantage for people with a particular protected characteristic.
The EAT highlighted that when considering claims of indirect discrimination, the correct process is to:
- Identify the correct pool for comparison.
- Analyse whether the policy or practice actually puts those with the protected characteristic at a disadvantage within that pool.
- Ensure there is sufficient evidence of a genuine disadvantage, rather than relying solely on societal assumptions.
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.
