The correct approach to indirect discrimination claims, that perennial tripwire for employment lawyers, was again in issue in the recent EAT decision of Allen v Primark Stores Limited[1].

As Baroness Hale reminded us in her seminal account of the law of indirect discrimination in Essop v Home Office[2], indirect discrimination is not concerned with equality of treatment, but rather equality of outcome. It is one form of trying to ‘level the playing field’ between those who hold a particular protected characteristic and those who do not.

Disparity of outcome is shown through the existence of group disadvantage caused by the relevant PCP, which in turn requires a consideration of the appropriate pool for comparison.

In broad terms:

  • The pool should contain all the workers affected by the PCP in question. Therefore, identifying the PCP will also identify the pool for comparison (Essop).
  • The pool should be one which tests the particular discrimination complained of (Grundy v British Airways)[3]
  • The identification of the pool for comparison from the PCP is not a question of fact-finding or of discretion, but of logic (Grundy; Dobson v North Cumbria Integrated Care NHS Trust[4])

It was the relationship between the PCP and the pool for comparison which proved problematic in Allen.

The case arose in the familiar context of contractual patterns of work and their effect on women with primary childcare responsibilities.

The claimant was a Department Manager within the respondent’s Bury store. The contracts of employment for managerial staff required them to work one of four shifts each day over a five day period; these included a shift that ran from 10.30am to 8.30pm, known as the late shift.

Following a period of maternity leave, the claimant requested a change to her contractual working hours under the respondent’s flexible working policy. Although the respondent made some accommodation, the claimant was still required to make herself available to work the late shift on a Thursday. The claimant brought a claim to the tribunal alleging indirect discrimination.

The PCP relied upon by the claimant went through a process of refinement as part of case management. By the time of the final hearing, the PCP advanced by the claimant was the requirement to guarantee her availability to work the Thursday late shift.

The tribunal identified the pool for comparison as the Department Managers at the Respondent’s Bury store. There were six Department Managers: the claimant, Piotr, Adam, Zee, Imran and Julie. Piotr had been granted a flexible working arrangement which meant that he never worked Thursdays. He was excluded within the pool. Zee and Imran had their own childcare responsibilities and were, on occasion, asked to work the Thursday late shift and were included within the pool. Of the proportion of men and women in that pool who were disadvantaged by the requirement to work a late shift on a Thursday because they had childcare responsibilities, two were men (Zee and Imran) and one was a woman (the claimant). As such, the tribunal found there was no group disadvantage and the claim of indirect discrimination was dismissed.

The problem with the tribunal’s analysis, so the EAT found, was that its identification of the pool did not correlate with the PCP on which the claimant relied. The claimant complained that she was required to guarantee her availability to work the Thursday late shift. Whilst Zee and Imran were on occasion asked to work the Thursday late shift, on the tribunal’s findings of fact neither were required to guarantee their availability. As such, they should not have been included in the pool.

The EAT waved away the respondent’s concern that excluding Zee and Imran would have left an artificially small pool of three. Although the EAT did not decide the point, if the numbers of workers within the tribunal’s choice of pool meant that it did not properly test the discrimination complained of, it should consider broadening the pool. In the case of Allen, that meant considering a pool which potentially went beyond the confines of the respondent’s Bury store.

For those who grapple with the intricacies of indirect discrimination, Allen is a useful case study, dealing as it does with facts which arose in a familiar context and which are reasonably easy to understand.

The key takeaways are these:

  • In defining the pool for comparison, the starting point must always be the relevant PCP. It is not for the tribunal (or the respondent for that matter) to seek to redefine the PCP if the claimant’s choice of PCP is logically defensible and is proven.
  • Identifying those workers who are affected by the PCP (and so should be included within the pool) requires careful analysis and may involve the drawing of fine distinctions (in the Allen case, a distinction between guaranteeing your availability, on the one hand, and merely being asked to work, on the other).
  • The fundamental purpose of the exercise is to identify a pool for comparison which provides a proper test for the claim of discrimination.
  • Remember that it is the effect of the claimant’s PCP which is being tested. Only those workers affected by the relevant PCP should be included within the pool.
  • If the pool is drawn narrowly (for example, one limited only to the claimant’s workplace) with the result that there are too few workers in the pool for a meaningful comparison, one should consider whether it is necessary to expand the scope of the pool (for example, to include workers within a region, or nationally).
  • This will require early consideration of the choice of pool to ensure that the effect of the PCP on those within the pool is addressed in the evidence. It may lead to embarrassment and delay if a party’s case on the appropriate pool first becomes apparent at the final hearing, only then to discover that there is no evidence before the tribunal of the effect of the PCP within that pool.