The claimant worked as a department manager for the respondent.  In November 2019 the claimant went on a period of maternity leave and on her return she sought flexible working arrangements.  She outlined that, as she had sole responsibility for her child, she would need flexibility, especially considering that the respondent had a policy where department managers had to be available to work late shifts.   The respondent did provide some flexibility but could not allow the claimant to have the Thursday late shift off.

There were 6 department managers in the particular store. Two of the department managers were able to work the Thursday evening shift. One, a man, had flexible working arrangements meaning he never worked the shift. Two others (both male) rarely worked the shift, citing childcare commitments. The respondent felt that for the latter two it had been in place for some time and was an implied contractual entitlement. Therefore, it left the claimant and two others who could be available for the Thursday evening shift. The respondent felt that they would have inadequate cover if it allowed the claimant’s request.

The claimant brought a claim of indirect sex discrimination.  She stated the practice that department managers had to guarantee availability for Thursday evening shifts put women at a disadvantage. At first instance, the claim was rejected on the basis that the pool consisted of two men and a woman who were similarly disadvantaged by the practice. The individual who had flexible working arrangements, meaning that he did not work on Thursday evening, was not considered as his arrangements were ‘specific’. The claimant appealed to the EAT.

The EAT upheld the appeal, outlining that the Tribunal made an error in constructing the pool for comparison. By including the two males who had the ‘implied entitlement’ it skewed the results. Additionally, the Tribunal looked at it from the perspective of who was asked to work on that shift, rather than the policy which was to ‘guarantee availability’. The separate point was clear with the two males with the ‘implied entitlement’. They did work Thursday evening on occasion when asked but they were treated as not being available.  Therefore, they did not guarantee their availability for that shift.   This was different than the claimant, as she was being asked to guarantee her availability for the shift.

The EAT outlined that that would only leave a pool of three and it may be artificial but that it was by no means saying that a UK-wide pool would have to be used to determine the question.   The primary question though was whether the pool used by the Tribunal was correct and it was not.  Therefore, the appeal was allowed and the case was remitted back to the Tribunal for a fresh decision.

Practical Lessons

This case gives a good insight into the make-up of a pool when it comes to comparators in a discrimination claim.  The difficulty in this case was that there was a distinction to be drawn between actually working the shift and guaranteed availability.  This was clear with the two males who were seen to have an implied entitlement so they were not treated as being available for the shift. This did skew the pool that was used.

Indeed, as the respondent operated these terms on a company wide basis it was at least possible to widen the pool to see the real effect of the policy.   The extent of the pool and the logical basis in its use must be considered by the parties in a discrimination case of this kind.
https://www.gov.uk/employment-appeal-tribunal-decisions/miss-natasha-allen-v-primark-stores-ltd-eat-2022-57