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.

Facts

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. 

Decision

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.