Sex discrimination claim after flexible working refused
27 April 2022
The Employment Appeal Tribunal (EAT) has upheld an appeal against the employment tribunal’s decision that a refusal of a flexible working request was not indirect sex discrimination.
Allen v Primark Stores Ltd  EAT 57
The claimant, A, was a department manager for Primark. As a department manager, her contract required her to guarantee her availability to work Thursday late shifts. On her return from maternity leave, she made a flexible working request in order to accommodate her childcare responsibilities. Primark only partially agreed to her request, and when her appeal against the decision was refused she resigned, bringing claims for constructive unfair dismissal and indirect sex discrimination. She claimed that Primark had applied a provision, criterion or practice (PCP) that department managers had to guarantee their availability to work Thursday late shifts, which put women at a disadvantage due to their childcare responsibilities.
The tribunal decided that the appropriate pool for comparison was all department managers in the store who might be asked to work Thursday late shifts. This pool included two male managers, who were not contractually required to work Thursday late shifts but who did so in emergencies. The tribunal concluded that since the PCP affected two men and one woman (A), it did not put women at a disadvantage. Her claim was therefore rejected. A appealed to the EAT.
The EAT upheld A’s appeal on the basis that the tribunal had selected the wrong pool for comparison. A had identified the PCP as being a requirement that she guaranteed her availability to work Thursday late shifts, not that she might be asked to do so. The two male managers were not subject to this same requirement, meaning that the tribunal had not properly engaged with determining the PCP for the purposes of establishing a claim of indirect discrimination. The EAT set aside the tribunal’s decision and remitted the case to be reheard.
Consequences of this decision
The EAT has not upheld A’s claim for indirect discrimination, rather it has decided that the tribunal’s conclusion that there was no indirect discrimination in Primark’s refusal to allow A’s flexible working request is unsafe, meaning that the case will be reheard.
The case is a useful illustration that even if an employer has followed the correct statutory procedure for dealing with a flexible working request, a refusal of the request can result in a claim for indirect discrimination on grounds of sex, or even disability. Employers should always be alert to this possibility when considering such requests.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at April 2022.