Employment tribunal and court judgments | April 2022

Discriminatory effects of late working requirement

In Allen v Primark Stores Ltd, the EAT has confirmed the importance of clearly determining the appropriate provision, criteria or practice ("PCP") and associated comparison pool in claims of indirect discrimination.

In this claim, the claimant had made a flexible working request following her return from maternity leave for childcare reasons, which was refused by Primark on the basis that, as a department manager, the claimant was required to guarantee her availability to work Thursday late shifts. The claimant considered this requirement to constitute a PCP which was indirectly discriminatory, putting women at a disadvantage because of childcare responsibilities and that she had suffered this disadvantage.

The Employment Tribunal considered the appropriate comparison pool to include all department managers in the claimant's store, which included two male colleagues who were considered to have an implied contractual right not to work Thursday late shifts, but did agree to do so from time to time. On this basis, the Tribunal did not consider the PCP to be discriminatory.

The Employment Appeal Tribunal however, upheld the claimant's appeal, finding that in constructing the comparison pool as outlined above, the Employment Tribunal had redefined the claimant's complaint; the PCP complained of was that the claimant was required to guarantee her availability to work late on a Thursday, not that she was being asked to work late. The male comparators within the pool were not required to guarantee their availability and so were in a significantly different situation to the claimant. The Tribunal's decision was therefore set aside and the case remitted.

When dealing with allegations of indirect discrimination, it is therefore important to clearly ascertain the precise nature of the PCP being complained of and to ensure that the comparison pool clearly relates to the same, so as to accurately assess the potential discriminatory impact of the PCP.

Overturning a decision of the EAT – protection from detriment in strike action

The Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) protects employees against detriment on grounds of trade union membership and activities, but no express protection short of dismissal for workers taking part in industrial action. In the case of Mercer v Alternative Future Group Ltd (reported in our June 2021 bulletin) the Employment Appeal Tribunal considered that section 146 TULRCA should be read as including protection against detriment for preparing or taking part in strike action, to ensure compliance with Article 11 of the European Convention of Human Rights (ECHR).

However, the Court of Appeal has recently reviewed and overturned this decision, restoring the position that section 146 does not cover detriment on the grounds of taking strike action. Whilst the Court of Appeal agreed that TULRCA's failure to provide proper protection against steps short of dismissal was a breach of Article 11 ECHR, it considered that to read section 146 as suggested by the EAT would result in impermissible judicial legislation – this was an issue to be addressed by Parliament and not the courts.

It remains to be seen if there will be a subsequent amendment to legislation as a result of this decision, but in the meantime, the judgment will provide some relief to employers facing strike action. However, employers should carefully consider the steps they take in such situations, particularly given the likely direction of travel and that the protection afforded by TULCRA having been determined to be unsatisfactory at each stage of the judicial process to date. 

Should you require any assistance in respect of threatened strike action of trade union issues more generally, please do not hesitate to contact us for further information and advice.

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