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Indirect Discrimination

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When considering the discriminatory impact of a PCP in relation to childcare, should the pool for comparison be limited to staff with childcare responsibilities?

Yes, held the EAT in Cumming v British Airways.

The case concerned BA's policy that where crew staff take three days unpaid parental leave in a month they automatically lose one day of paid leave. The claimant argued that this policy was indirectly discriminatory towards women as a higher proportion of women take parental leave and women are therefore put at a particular disadvantage by the policy. Her tribunal claim was rejected on the grounds that the policy applied equally to all crew members whether male or female and there was no particular disadvantage to women.

The EAT found this to be an error of law as the tribunal had failed to consider the key question of whether women were put to a particular disadvantage against men in the same material circumstances. The relevant pool for comparison in considering this question is not crew members in general but male and female crew members who have children of a relevant age and can therefore be said to have childcare responsibilities.

The case has been remitted to tribunal for consideration of the claim based upon this pool for comparison and the Respondent's cross appeal that the policy does not involve any disadvantage.

Thanks to Mark Alaszewski of didlaw for preparing this case summary.