Facts
The Respondent to these proceedings, Ms Perkins, held the role of Head of Enforcement with the Appellant, Marston (Holdings) Ltd, prior to her dismissal on the grounds of redundancy. Ms Perkins’ duties changed when the Appellant restructured its Enforcement Services Division. This resulted in Ms Perkins being required to travel long distances in order to fulfil the new expectations which had been introduced to her role following the restructure. Ms Perkins asserted that travelling long distances was difficult due to childcare responsibilities as she was the primary carer for two young children. She attended meetings remotely following the restructure however the Appellant proceeded to amend her job description to include that she must “travel as and when required.” Ms Perkins continued to refuse to comply with this requirement due to her childcare arrangements and was subsequently made redundant.
Ms Perkins then proceeded to issue proceedings for the following claims at the ET:
1) Unfair dismissal: an employee in GB with at least two years’ continuous service may bring such a claim where the reason was not fair and where their employer did not follow a fair procedure for dismissal; and
2) Indirect Sex Discrimination: this can arise when an employer implements a provision, criterion or practice (PCP) which puts certain people at a disadvantage, and which cannot be shown to be a proportionate means of achieving a legitimate aim.
The ET
The ET upheld both claims and found that the reason for Ms Perkins dismissal was because she could not meet the new requirements of her role, rather than redundancy which is what her employer had asserted. Furthermore, the ET found that Ms Perkins was indirectly discriminated against due to her sex as the amendment to her role as Head of Enforcement was a provision, criterion or practice which disadvantaged women due to the disparity of childcare responsibilities between men and women. The ET judicially noted this disparity when reaching their decision. Marston (Holdings) Ltd subsequently appealed this decision to the EAT.
The EAT
The EAT found in favour of the Appellant and remitted the case for reconsideration to a lower court. It determined that, as Ms Perkins had conceded that at an earlier stage in the proceedings that she had been made redundant, that the ET was incorrect in allowing her to retract this concession without giving the Appellant an opportunity to address this issue. The Appellant’s case had been on the basis that the reason for dismissal was redundancy and therefore the EAT found that it was unfair for the ET to have adopted this course. The Appellant should have been permitted the opportunity to plead its case in respect of this issue. This highlights to claimants the importance of clearly stating their case so to not limit any potentially meritorious claim.
The EAT also examined the ET’s utilisation of judicial notice. Judicial notice is when a court recognises a commonly accepted fact without requiring specific evidence as the fact cannot be reasonably doubted. The ET had taken judicial notice that primary childcare responsibilities are more likely to be held by women rather than men. However, the EAT found that the ET had failed in examining how the new requirement to travel would affect the particular pool of employees which the Respondent fell within. The EAT found that the group disadvantage from the PCP within the Respondent’s team had not been clearly established as the ET had not fully interrogated this aspect of the claim. Furthermore, the EAT found that the ET had not sufficiently considered whether the requirement to travel as part of the Respondent’s role could be justified as a proportionate means of achieving a legitimate aim of the business.
Comment
The EAT’s decision emphasises how important it is for claimants in cases of indirect discrimination to clearly establish how the particular PCP disadvantages people with their protected characteristic within their specific job pool.
We can expect to see more cases on this topic with many employers seeking to encourage their workforce back into the workplace, it will be interesting to see how the case law develops.
Authored by Jenny Rankin
