Assessing policies for indirect discrimination
Cumming v British Airways PLC
Indirect discrimination concerns the employer’s application of a policy or practice that applies to all employees but has the effect of placing some at a disadvantage because of a protected characteristic. In the case of Cumming v British Airways PLC the Employment Appeal Tribunal had to assess whether the way in which a parental leave policy operated had placed women at a disadvantage in comparison to others.
BA staff had a right to paid rest days each month. However, the employer introduced a policy which provided that one day’s paid rest leave would be lost for every three days of unpaid parental leave taken in the month. Ms Cumming argued that this had a disproportionate impact on women as proportionately they took more parental leave than men. BA denied that women suffered any disadvantage and argued that in any event the policy was justified.
The Tribunal found there was no particular disadvantage to women as the disadvantage applied to all who had childcare responsibilities. However, on appeal, this was overturned. The wrong pool had been considered for assessing any disadvantage. To assess if this policy indirectly discriminated against women the pool for comparison wasn’t all the employees to which the policy applies, it was the employees to which the policy applies that have childcare responsibilities.
Key takeaway point
The decision highlights that the comparison pool should be chosen in a way that tests the claim that the policy disadvantages on the basis of a particular protected characteristic i.e. sex. Where the only employees actually impacted by the policy were those with childcare only a comparison of men and women in that pool would identify whether there was a disadvantage on the grounds of gender. This should be taken into account when assessing the impact of introducing new policies in the workplace.
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