![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
United Kingdom Employment Appeal Tribunal |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just Β£5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Cumming v British Airways Plc [2021] UKEAT 0337_19_2201 (22 January 2021) URL: https://www.bailii.org/uk/cases/UKEAT/2021/0337_19_2201.html Cite as: [2021] UKEAT 0337_19_2201, [2021] UKEAT 337_19_2201 |
[New search]
[Context]
[View without highlighting]
[Printable PDF version]
[Help]
At the Tribunal | |
On 1 December 2020 | |
Before
HIS HONOUR JUDGE SHANKS
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR ![]() (of Counsel) Instructed by: OH Parsons LLP Third Floor Churchill House Chalvey Road East Slough SL1 2LS |
For the Respondent | MS TALIA BARSAM (of Counsel) Instructed by: Harrison Clark Rickerbys Solicitors Overross House Ross Park Ross-On-Wye HR9 7US |
SUMMARY
The Claimant was a female member of British Airways (BA's) Eurofleet aircrew. BA had a policy (accepted as being a PCP) that members of crew who took 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. She claimed that this policy involved indirect discrimination on grounds of sex because a higher proportion of women took parental leave than men and that the policy therefore put women at a "particular disadvantage". It was common ground that the appropriate "pool" for comparison was all crew members (both male and female) who had childcare responsibilities. The Employment Tribunal (ET) rejected the claim on the basis that all crew members (whether male or female) who took parental leave would lose the paid rest day(s). This was an error of law since not all crew members with childcare responsibilities would necessarily take parental leave and the proper comparison was between the impact of the policy on women with childcare responsibilities and the impact on men with childcare responsibilities. The Claimant's appeal was allowed.
BA cross-appealed on the basis that the ET was wrong to find that the policy involved any "disadvantage" at all. The ET had decided in effect that it was self-evident that this was so but did not consider BA's arguments that it did not represent a "disadvantage" but was in effect a function of the rostering system. BA's arguments were worthy of consideration and the ET therefore made an error of law in failing to consider them; BA's cross-appeal was therefore allowed.
The "particular disadvantage" and "disadvantage" issues were remitted to a fresh ET to be considered again on the same evidence along with the issue of justification which remained outstanding.
HIS HONOUR JUDGE SHANKS
Introduction
"
(1) 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.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) 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,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.
(3) The relevant protected characteristics are
sex
"
Section 23(1) provides:
"On a comparison of cases for the purposes of section 19 there must be no material difference between the circumstances relating to each case."
Factual background
Appeal: "particular disadvantage"
"[24] The first salient feature is that, in none of the various definitions of indirect discrimination, is there any express requirement for an explanation why a particular PCP puts one group at a disadvantage when compared with others
[26] A third salient feature is that the reasons why one group may find it harder to comply with the PCP than others are many and various They could be social, such as the expectation that women will bear the greater responsibility for caring for the home and family than will men
[27] A fourth salient feature is that there is no requirement that the PCP in question put every member of the group sharing the particular protected characteristic at a disadvantage
[28] A fifth salient feature is that it is commonplace for the disparate impact, or particular disadvantage, to be established on the basis of statistical evidence
[29] A final salient feature is that it is always open to the respondent to show that the PCP is justified in other words, that there is a good reason for the particular requirement The requirement to justify a PCP should not be seen as placing an unreasonable burden on respondents. Nor should it be seen as casting some sort of shadow or stigma upon them. There is no shame in it. There may well be very good reasons for the PCP in question "
At paragraphs [40] and [41] Lady Hale considered the law in relation to the group or "pool" from which the comparison is made for the purposes of section 19(2)(b). She referred to remarks of Sedley LJ to the effect that the pool chosen should be that which suitably tests the particular discrimination complained of and that identifying the pool was not a matter of discretion or fact-finding but of logic. She quoted a further remark of Sedley LJ's when he gave leave to appeal in that case:
"There is no formula for identifying indirect discrimination pools, but there are some guiding principles. Amongst these is the principle that the pool should not be so drawn as to incorporate the disputed condition."
At paragraph [41] she quoted from the relevant Equality and Human Rights Commission Code of Practice which states:
"In general, the pool should consist of the group which the provision, criterion or practice affects (or would affect) either positively and negatively, while excluding workers who are not affected by it, either positively or negatively."
She concluded:
"In other words, all the workers affected by the PCP in question should be considered. Then the comparison can be made between the impact of the PCP on the group with the relevant protected characteristic and its impact upon the group without it There is no warrant for including only some of the persons affected by the PCP for comparison purposes "
Cross-appeal: "disadvantage"
Disposal
(a) put (or would put) anyone in the Eurofleet crew with childcare responsibilities at a "disadvantage";
(b) put (or would) put women in that group at a "particular disadvantage" when compared with men in that group; and (if necessary)
(c) was a proportionate means of achieving a legitimate end.
Subject to any submissions the parties wish to make, I consider that the case should be remitted to a fresh Tribunal. As I have already indicated, fairness requires that the parties are not at liberty to present any additional evidence and they will have to make their respective cases as best they can based on the evidence already produced.