Welcome to this months employment law update. We’ve got plenty of interesting tribunal cases for you to get your teeth into, including:
✈️ Indirect discrimination in Cummings v British Airways
🤰 Pregnancy discrimination in Devon & Cornwall Police v Town
❌ Racial Harassment in Allay (UK) Ltd v Gehlen
✉️ Trade union activities in UCL v Brown
Cummings v British Airways
Indirect discrimination arises when an employer applies a policy to everyone which puts people who share a protected characteristic (such as race or sex) at a ‘particular disadvantage’. The policy must also put the employee in question at that disadvantage. It involves a comparative exercise: showing that one group is disadvantaged when compared to another. These groups are often referred to as the ‘pools for comparison’. The pools need to include all the workers affected by the policy but exclude those who are not. In Cummings v British Airways, the EAT examined who should go into these pools in an indirect sex discrimination claim involving childcare.
The details of the case
British Airways had a policy that crew members who took parental leave would have one rest day removed for every three days’ parental leave taken in a monthly roster. The policy was applied to the employee who brought an employment tribunal claim.
The employment tribunal found that the policy did not put women at a particular disadvantage when compared to men. The pools for comparison were men with childcare responsibilities and women with childcare responsibilities within the workforce. Since 100 per cent of both groups suffered the same disadvantage when they took parental leave, the tribunal said there was no particular disadvantage to women.
The EAT said there was a problem with this reasoning. Not all employees with childcare responsibilities would apply for and take parental leave.
This means that not all people with childcare responsibilities in either group – male or female – would be disadvantaged.
It had been acknowledged in the Supreme Court case of Essop that women still bear the bulk of childcare responsibilities in society. Of 2500 cabin crew, 69 per cent were women and 31 per cent were men. Of those who took parental leave, 417 were women compared to 92 men. A far greater proportion of female employees (24.2 per cent) took parental leave compared to male employees (11.9 per cent). But what was missing from the evidence was the comparison between the specific number of male and female staff with children of the relevant age, who therefore had ‘childcare responsibilities’.
This was an error of law and the matter was sent back to a fresh employment tribunal to consider the following questions:
- Did the policy put staff with childcare responsibilities at a disadvantage;
- Did it put women in that group at a particular disadvantage when compared with men; and
- Was it justified?
So, what can we learn?
This case is a helpful explanation of how the pools for comparison are made up in an indirect discrimination claim.
It is a complex analytical exercise with this case showing how eminent lawyers and even judges can get it wrong. It’s worth employers getting early legal advice in relation to allegations of indirect discrimination so that any problematic policies can be weeded out and changed before cases get to court.
Where do you stand on the “No Jab. No Job” debate?
With the coronavirus vaccination programme well underway in the UK, many employers are considering what vaccination might mean for their business. Some companies are announcing that they will dismiss or refuse to recruit employees who aren’t vaccinated. With 23 per cent of employers telling a HRLocker survey that they plan to make vaccination compulsory, everyone wants to know whether a ‘no jab, no job’ policy is legal.
Whilst there is a potential business case for vaccination within the workforce e.g. on the grounds of health and safety, consideration also needs to be given to balancing this against the rights of individuals and any personal circumstances they may have. We discuss this debate in our latest video.
We’re also running a number of short webinars regarding the legal and medical considerations and providing guidance to businesses on this hot topic. If you would be interested in joining one of these webinars you can view the events and book your place here. Or, if you are a bit further along in your thinking, we can provide bespoke support with:
- Reviewing an Impact assessment & preparing a business case for the Board
- Communication and consultation advice
- Letter drafting
- Negotiation and conciliation support
Until next month…