Two real cases of indirect sex discrimination at work and how things turned out

There are 9 protected characteristics under the Equality Act 2010 - one of which is sex. Sex discrimination can be quite subtle, for example in cases of indirect discrimination. 

We look at a couple of different examples of indirect sex discrimination that have been brought to the Employment Tribunal. Both cases involve working parents who needed to adjust their working patterns on return from maternity leave. One of the claims succeeded and the other could still go either way - we’ll look at the reasons why.

Example 1: a successful indirect sex discrimination case

What happened

Emily was a sales manager who worked for an estate agent in central London. She worked there for over 3 years - from October 2016 until December 2019. 

Emily was very successful in her sales role, and was an experienced and valued member of the team. She worked Monday to Friday, generally from 9am until 6pm. 

In April 2018, she informed her boss that she was pregnant, and she went on maternity leave from October 2018 until October 2019.  

Emily hoped to be able to return to work on reduced hours following her maternity leave, and so asked to meet with her boss to discuss her return to work. When the meeting took place, in August 2019, Emily asked if she could return to work four days a week, suggesting that the fifth day could be covered by a colleague who was already familiar with the role. 

She also asked if she could now leave work at 5pm each day, as opposed to the standard finish time of 6pm. This was because the nursery that Emily’s child attended closed at 6pm, and was around an hour’s drive away from Emily’s workplace. 

Emily’s boss expressed some reservations about the proposals, but said that Emily should put in a formal flexible working request (see Government guidance). Emily took this to mean that he was saying no to the request, although the Employment Tribunal found that it was not reasonable to conclude from the lack of encouragement in his response that she was being refused.

In October 2019, Emily put in a formal grievance, covering a range of issues, including ​​rejection of an informal request to work flexibly. She included a formal request for flexible working alongside the grievance.

Later that month, Emily’s maternity leave period ended, but she extended her time off using annual leave. A few days later, she notified ACAS about the dispute so she could start Early Conciliation. Towards the end of the month, she attended a grievance hearing. 

In November 2019, Emily met with her boss to discuss the formal flexible working request. They discussed the practicalities of the proposals Emily had put forward. For example, Emily said she would be happy to work whichever four days her employer wanted, and could be available by phone when not working.

A week later, Emily’s boss sent her a letter turning down her request for flexible working. He gave 5 “business reasons” why the request was not accepted: 

1. the burden of additional costs
2. detrimental effect on ability to meet customer demand
3. inability to reorganise work among existing staff 
4. inability to recruit additional staff
5. planned structural change. 

He also added that “For continuity purposes, our clients expect consistency in the sales manager they deal with, which is a further reason why it would not be suitable to recruit additional staff to cover the proposed hours.”

At around the same time, Emily sent a doctor’s note to her employer, which stated that she had been signed off for sleep loss and stress. There was some dispute about whether the time should be taken as annual leave or sick leave. She did not return to work after this. 

Emily appealed the refusal of her flexible working request, saying that none of the grounds relied upon had been explained. In December 2019, she attended an appeal hearing to discuss the flexible working request. The day after the flexible working appeal hearing, her employer sent her a letter saying that her grievance (for which she’d attended a hearing in October 2019) had been rejected. She didn’t appeal the grievance outcome, because she saw no prospect of the appeal being handled fairly, but instead resigned a few days later. After her resignation, a report was also sent to her informing her that the flexible working appeal had also failed.

The decision

Emily made a number of different claims to the Employment Tribunal. However, the only claim that succeeded was a claim for indirect sex discrimination, under section 19 of the Equality Act 2010.

Section 19 of the Equality Act 2010 refers to employers’ “provisions, criteria or practices” that can be examined to see if they are discriminatory. These are known as PCPs, and the definition of a PCP is deliberately broad. It covers any kind of rule, formal or informal policy, practice, or decision, written or implied.

The Employment Tribunal decided that:

• The requirement that the sales manager work full time, 9am-6pm, Monday to Friday, counted as a PCP.
• That working hours requirement would apply to anyone doing the sales manager role.
• Although it is less obvious than a generation ago, it is still the case that mothers are more likely than fathers to carry primary childcare responsibility. Therefore the PCP placed women with children at more of a substantial disadvantage than men with children.
• The PCP put Emily specifically at a disadvantage.

Justification

In indirect discrimination cases, it is possible for the discrimination to be justified as a proportionate means of achieving a legitimate aim. The Employment Tribunal took the legitimate aim to be the success of the business. The Employment Tribunal therefore considered the extent to which the company’s reasons for refusal showed the response was proportionate to this aim.

Planned structural change

The company had given planned structural change as one of the reasons for refusing the flexible working request. However they gave very little information about what they meant by this. The Employment Tribunal gave little weight to this factor.

The ability to meet customer demand

The Employment Tribunal saw some merit in the argument that the flexible working request might affect the company’s ability to meet customer demand. They accepted that working 9-5 four days a week might damage relationships, for example if customers wanted instant answers and became frustrated that others could not answer them. However, the Tribunal did not consider this to be inevitable, and might depend on other factors such as the reliability of the rest of the team. 

The costs of the proposal, the inability to reorganise work among existing staff, and the inability to recruit additional staff

Emily’s boss was concerned that there would be difficulties in allocating commission between sales staff when Emily’s role needed to be partially covered by others. The Employment Tribunal was not convinced that this was an insurmountable issue. They also felt that it would be possible for her work to be reorganised amongst the team, especially given that there was a member of staff who knew the role well as she had been acting as Emily’s maternity cover. They were not persuaded that there would be an issue in recruiting appropriate staff if there was a need to increase the sales team’s resources. 

The Employment Tribunal concluded that the company had not shown that the refusal of the proposed reduction in hours of work was proportionate to the real need of the business to maintain successful relations with customers. 

The indirect discrimination claim was therefore successful, and Emily was awarded £184,961.32 in compensation.

Read Emily’s full case decision on the Government Publishing Service

What you can learn from this

Your employer is not allowed to discriminate against you when making a flexible working decision. 

If you have experienced discrimination in relation to your working hours, you might want to raise a grievance regarding this. You can use the Valla platform to research your case and organise your evidence. Sign up for your free account.

Example 2: an undecided indirect sex discrimination case

What happened

Siobhan was a Department Manager at a well-known clothes retailer. She was due to return to work in November 2019 after her maternity leave, which she extended by using her holiday entitlement. 

Siobhan was a single mother and did not have much help available from family or friends in terms of childcare. She realised, before returning to work, that she would have some difficulty in meeting the shift pattern for her role.

The PCP that she said placed her at a disadvantage was the requirement for her to work the late shift on a Thursday evening (10.30am to 8.30pm) – that was part of her job prior to her maternity leave, and part of the job of the other Departmental Managers at the store.

Siobhan therefore applied under the company’s flexible working policy for a change in her contractual hours. 

The company rejected Siobhan's request, but proposed to her an alternative working pattern, which were mostly day shifts but would require her to work some “Thursday lates”. Siobhan said she could not meet the requirement to work Thursday lates and so appealed that decision, but this was unsuccessful. In September 2019, when Siobhan received the outcome of the appeal, she resigned from the company and claimed constructive unfair dismissal and indirect sex discrimination.

The reasons the company gave for their refusal of Siobhan's flexible working request were that it would have:

• had a detrimental effect on the company’s ability to meet the demands of their customers
• created difficulties in reorganising the work between its Departmental Managers.
  

The Departmental Managers who had historically worked on Thursdays were Ryan, Min, Jakub, Christina and Siobhan – three men and two women. 

• Jakub and Christina had no issues working Thursdays - they worked 26 and 30 Thursday lates respectively over a period of 51 weeks. 
• Min and Ryan, however, both had childcare issues. 

• Min took his son to football on Thursdays and therefore was in for only a few Thursday lates, mainly in the school holidays (4 over a period of 51 weeks). 
• Ryan had childcare responsibilities because his wife also worked in retail (he did 16 Thursday lates over 51 weeks).
  

There was also another Departmental Manager, John, who did not work the late shift at all because of his own flexible working arrangement, which was appropriate to his specific circumstances.  

Min and Ryan’s arrangements were informal. The store manager, Siobhan’s boss, felt the working pattern for Min and Ryan, namely not to work the late shift on Thursdays, had become so entrenched that they had become implied terms in their contracts. However, when asked, and when the store required (perhaps in an emergency or when Jakub and Christina could not work), those two men did work on a Thursday.

The Employment Tribunal decision

The Employment Tribunal established that the relevant “pool” from which to consider whether there had been discrimination was made up of the five Departmental Managers identified above: Ryan, Min, Jakub, Christina and Siobhan. John had no interest in the advantage or disadvantage caused, since he did not work Thursday lates at all, so he was not included in the pool.

The Tribunal then looked at the proportion of men and women in that pool who were disadvantaged by the requirement to work a late shift on a Thursday because they had childcare responsibilities. Two of them were men (Min and Ryan) and one of them was a woman (Siobhan). 

As a result of this, they found that women were not at a particular disadvantage, and therefore it could not be said that the PCP put women at a particular disadvantage when compared with men.

The company had also offered her an alternative as near as possible to what she had wanted, taking into account their reasonable needs to staff the Thursday lates. Just as Min and Ryan had been asked to carry out that shift, despite childcare responsibilities, so Siobhan would have been, if she had agreed to the company’s proposal. 

Siobhan’s indirect sex discrimination claim was unsuccessful, as it had failed at the hurdle of showing that the PCP placed women at a particular disadvantage compared to men. As a result, the Employment Tribunal did not have to go on to consider whether the company could justify the imposition of the PCP. 

Read Siobhan’s full case decision on the Government Publishing Service

The Employment Appeal Tribunal decision

Siobhan appealed the decision to the Employment Appeal Tribunal (“EAT”). Her argument was that the original Tribunal decision got the “pool” wrong. Her lawyer argued that the pool shouldn’t have been the five Departmental Managers: Ryan, Min, Jakub, Christina and Siobhan. Instead, it should have been a wider pool including all of the Departmental Managers across the UK. This was because the requirement to work “Thursday lates” was part of the standard terms and conditions for managers across the UK. 

The EAT’s decision didn’t go as far as to say that the pool should have been the wider pool of Departmental Managers across the entire UK. However, they did think that the pool as the Tribunal had decided it was wrong. This was because the PCP was not just about being asked to do “Thursday lates” - it was about being asked to guarantee availability for those shifts. The real issue was that Min and Ryan didn’t have a contractual requirement to do “Thursday lates” - they just sometimes helped out when asked. This was different to Siobhan’s case where she would have had a contractual obligation to guarantee her availability for those shifts.

The case has now been “remitted” for a re-hearing. This means that it is being sent back to the Employment Tribunal for them to reconsider their decision.

Read Siobhan’s full EAT decision on the Government Publishing Service

What you can learn from this

It can be tricky to argue that a PCP places those with a particular protected characteristic (in this case, being female) at a disadvantage compared to those without it. Interestingly, the Employment Tribunal may have made a different decision had this case taken place a few months later, when there was an EAT decision which accepted that women, because of their childcare responsibilities, were less likely to be able to accommodate certain working patterns than men.

Try to think about who else is in the “pool” affected by the PCP and whether in fact those with the protected characteristic you’re claiming about are more likely to be affected. 

Finally, the company’s reasons for refusing Siobhan’s flexible working request were quite similar to the reasons given in Emily’s case above (a potential impact on meeting customer demands, and difficulties in reorganising the work between staff). However, because Siobhan’s indirect discrimination claim failed at the stage of showing that a particular group was disadvantaged, the Tribunal did not to go on to consider the company’s justifications and whether they could show the PCP to be a proportionate means of achieving a legitimate aim.

A note for transgender and intersex people

As things stand at the moment, the law refers to “sex” in a very binary fashion, according to the sex recorded on your birth certificate or Gender Recognition Certificate (GRC). 

If you don’t yet have a GRC, but are transitioning, then any discrimination is likely to fall under the characteristic of Gender Reassignment.

If you’re being discriminated against because your gender is non-binary, this would also probably count as Gender Reassignment discrimination. There has been at least one successful case of non-binary discrimination brought to the Employment Tribunal.  

The Equality Act doesn’t specifically mention intersex people. However, if you are being discriminated against because you are intersex, then sex discrimination or disability discrimination may be relevant. 

How to progress your indirect sex discrimination claim

For many women, sex discrimination affects them in some form during the course of their career. Indirect discrimination is particularly common against women who have childcare responsibilities. This is because women are still statistically more likely to bear a larger proportion of childcare responsibilities than men. 

If you think you may have a case for sex discrimination, our platform can help you understand the law, gather your evidence, and start a claim in the Employment Tribunal. Sign up for your free account.