Case Law Update: Cumming v British Airways

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Ben McCarthy

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05 Feb 2021

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The Employment Appeal Tribunal (EAT) has considered whether a policy that removed contracted rest days due to the taking of parental leave was indirectly discriminatory against women.

This case revolves around the right to unpaid parental leave. This is leave that is taken for the purposes of caring for a child and is usually limited to four weeks per year. Unpaid parental leave applies to male and female workers equally.

Under the Equality Act 2010, Indirect sex discrimination occurs when a provision, criterion or practice (PCP) is applied universally and that PCP:

  • puts, or would put, a group of people of one sex at a particular disadvantage compared to people of the other sex in circumstances where there is no material difference in each case
  • puts, or would put, an individual employee at a disadvantage
  • cannot be shown to be a proportionate means of achieving a legitimate aim.

In the case of Essop v Home Office, the Court of Appeal outlined that identifying the pool of individuals disadvantaged by a PCP was a matter of logic. The pool should consist of the group which the PCP in practice affects either positively or negatively. A comparison should then be made between those who have the relevant protected characteristic and those who don’t.   

Cumming v British Airways

Facts

This case involved a business that offered 10 paid rest days to staff. The rest of the days in the respective month are worked. The employees were also entitled to take unpaid parental leave in line with employment law.

In 2010, a new policy was introduced that removed one paid rest day for every three unpaid parental leave days taken. The purpose behind the policy was to avoid an example of perceived unfairness. The reason this would be seen as unfair is as follows:

An employee could take three weeks of parental leave in one month and claim the remaining ten days as paid rest days.

In this case the claimant took a period of parental leave. As a result, they had one less paid rest day. She later claimed that this placed her at a disadvantage. She provided statistics that more women than men took parental leave in the organisation.

ET

The employment tribunal (ET) identified that the appropriate pool for comparison. In this case it was female members of staff with childcare responsibilities and male colleagues in the same position. They held that as 100% of men and women who took this leave suffered the disadvantage specified. There didn’t seem to be a particular disadvantage to women.

As a result, they dismissed her claim.  The claimant appealed on the basis that women tend to bear the bulk of childcare responsibilities. This meant women were at a disadvantage. The respondent argued that this could not succeed as it wasn’t the argument put to the employment tribunal.

EAT

The EAT took issue with the tribunal’s focus on men and women who took parental leave. There was no evidence that all of them took the leave purely as a result of childcaring requirements. Legally, parental leave can be taken by all working parents. There is technically no need to demonstrate this.

There was no evidence to show that female employees did bear the bulk of additional childcare responsibilities. However, this wasn’t necessary to establish that indirect discrimination had taken place. What was missing was specific evidence of the numbers of staff with childcare responsibilities in the group. There was currently no reason to think that the proportion of men with childcare responsibilities differed from the proportion of women.  This issue was therefore remitted back to the tribunal for further review.

Note for employers

This case is still ongoing and it remains to be seen how the new tribunal will conclude. Keep in mind the group it will focus on as it assesses if there was a case of indirect discrimination.

Despite the case not being concluded, it sends a clear message to organisations that they should be cautious when seeking to implement new policies. This is particularly important when they may, questionably, deny working parents their rights. Such an action can easily result in a successful claim for sex discrimination.

Expert support

If you're concerned with how this ruling may affect your business, speak to a Croner expert today on 01455 858 132.

About the Author

Ben McCarthy works as a content writer for Croner producing commentary and guidance on employment law and key HR developments. Coming from an extensive legal background, Ben regularly constructs key training materials for clients and advisers, and provides daily contributions to national publications.

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