• Robert Spicer

Indirect sex discrimination: justification: two new EAT decisions

SEX DISCRIMINATION

Indirect discrimination

Balancing act

Case Dutton v The Governing Body of Woodslee Primary School (2016) Morning Star, September 16, EAT

Facts Ms D was a teacher at a school for children with special educational needs who needed a significant degree of continuity and stability. Ms D requested that she should return to work on a part-time basis, working four days a week instead of five, after maternity leave. The employer refused on the basis that the children required stability. Ms D claimed indirect sex discrimination. She argued that the employer had imposed a provision, criterion or practice (PCP) which placed her at a particular disadvantage because of her gender. The claim was rejected by the ET on the ground that the PCP was a proportionate means of achieving a legitimate aim. Ms D appealed to the EAT.

Decision 1. The appeal was allowed and the matter remitted to a freshly constituted tribunal.

  1. The ET had not fully weighed the importance of the legitimate aim against the discriminatory effect of the treatment.

SEX DISCRIMINATION

Indirect discrimination

Balancing act

Case XC Trains Ltd v CD and others (2016) Morning Star, September 9, EAT

Facts CD, a female employee, worked full time for X as a train driver/instructor. She was required to work 35 hours a week over six days with daily working hours determined by the employer. She also had to work on rostered Sundays. CD had three children. She asked to work flexibly and her specific request not to work Saturdays and Sundays was rejected. She complained of indirect sex discrimination. The ET found that the working arrangements put women and CD at a particular disadvantage. The PCP was not a proportionate aim. Other large employers had transformed their working practices. The employer appealed to the EAT.

Decision 1. The appeal was allowed and the matter remitted to the ET to decide whether the PCP was a proportionate means of achieving a legitimate aim.

  1. The ET had exceeded the scope of the exercise it should have undertaken when it categorised the employer’s bargaining system as “outdated”.

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