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Provision, Criterion or Practice

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In claims for indirect discrimination should the comparison pool be matched to the relevant PCP?

Yes, held the EAT in Allen v Primark.

The Claimant worked for the Respondent as a Department Manager. Following maternity leave she aimed to return to work in November 2019. In advance, due to her childcare responsibilities, she made an application for flexible working. Her main concern being that she would be disadvantaged by the PCP that she was required, as a manager, to guarantee her availability for late shifts on a Thursday. She felt this put her, as a woman, with childcare responsibilities at a substantial disadvantage. The Respondent would not accommodate all of her requests and she resigned claiming constructive dismissal and indirect sex discrimination.

The tribunal identified the relevant comparison pool to be the department managers within the same store bar one who had his own arrangement with the Respondent. Based on the proportion of men and women in the identified pool that were disadvantaged by the requirement to work a late shift on a Thursday the tribunal found that women were not at a particular disadvantage.

The EAT held that the tribunal's approach in determining the comparison pool was incorrect as it wrongly defined the Claimant's discrimination complaint. The tribunal had approached the PCP on the basis of the Claimant being asked to work late on Thursday which her childcare did not permit. The Claimant's PCP was actually that she was being required to guarantee her availability for those shifts. The EAT found that the tribunal's failure to accurately address the PCP rendered the comparison pool unsafe. The case was remitted for re-hearing.

Thanks to Elizabeth McGlone of didlaw for preparing this case summary.