The Employment Appeal Tribunal (EAT) has provided further guidance on indirect discrimination in practice in a recent decision concerning childcare disparity. While judicial notice allows tribunals to acknowledge the childcare disparity at a societal level in an indirect discrimination claim, they must still assess in detail how a specific policy or requirement impacts a particular claimant and other employees in the same position.

Background

Under the Equality Act 2010, it is unlawful for an employer to discriminate against individuals because of a protected characteristic, such as sex. Indirect discrimination occurs when an employer applies a provision, criterion or practice (PCP) which places individuals with a particular protected characteristic at a disadvantage. An employer can defend claims of indirect discrimination where it can show that the PCP is objectively justified. The legal test is whether the PCP is a proportionate means of achieving a legitimate aim.

Employment tribunals can take "judicial notice" of certain well-established facts without requiring the parties to provide specific evidence. One such fact, recognised in case law, is that women are more likely than men to bear primary childcare responsibilities. This disparity can, in some cases, limit their ability to work certain hours or accommodate specific working patterns (the "childcare disparity").

However, the acceptance of this general fact does not automatically establish a legal disadvantage in every case of indirect discrimination, although in some cases there will be an obvious link. While judicial notice allows tribunals to acknowledge the childcare disparity at a societal level in an indirect discrimination claim, they must still assess in detail how a specific policy or requirement impacts a particular claimant and other employees in the same position.

Marston (Holdings) Ltd v. Perkins: the facts

Ms Perkins was employed by Marston (Holdings) Ltd (Marston) as Head of Enforcement. Ms Perkins has childcare responsibility for her two children, both under five.

Following a restructure in 2021, the geographical area Marston expected Ms Perkins to cover expanded significantly. Ms Perkins' line manager later added the phrase "travel as and when required" to her job description. Ms Perkins stated that she could travel reasonable distances but would not be able to travel distances that did not allow her to return in time for her to care for her children. After she refused to travel and attend in-person meetings, Marston gave Ms Perkins the option of accepting the travel requirements, fire and rehire, or redundancy. She indicated that, if Marston were to dismiss her, she would prefer redundancy and Marston subsequently gave her notice of dismissal on grounds of redundancy.

Ms Perkins appealed the decision to make her redundant, which Marston rejected. Ms Perkins then brought claims for unfair dismissal and indirect sex discrimination in the Employment Tribunal (ET).

ET decision

The ET found in favour of Ms Perkins. On the unfair dismissal claim, it concluded that the real reason for dismissal had been the travel requirements and not redundancy.

The ET took judicial notice of the childcare disparity and found that, by imposing travel requirements that were incompatible with her childcare responsibilities (a PCP), Marston had indirectly discriminated against Ms Perkins on the grounds of sex. It was not satisfied that Marston had objectively justified the travel PCP.

EAT decision

On appeal by Marston, the EAT found that the ET had erred by allowing a finding of unfair dismissal since Ms Perkins had accepted that her dismissal was a redundancy in an earlier preliminary hearing. The ET should not have allowed Ms Perkins to withdraw that concession without giving Marston an opportunity to make representations.

The EAT also considered that the ET had been incorrect in its application of judicial notice. Although previous cases have established that tribunals can accept it as fact that women are more likely to bear the burden of childcare responsibility, the ET in this case had gone further in accepting that "women are the primary carers of small children" and "would not be able to perform [the employee's role] with a requirement to travel significant distances" without evidence to support those conclusions. The EAT found that the ET had been insufficiently clear in its reasoning when setting out its approach to accepting these facts and had failed to offer clarity as to its finding of an intrinsic link between the PCP (the requirement to travel) and the disadvantage claimed by Ms Perkins. The EAT also found that the ET had not adequately assessed whether Marston could objectively justify the travel PCP.

As a result, the EAT allowed Marston's appeal in relation to both claims.

What does this mean for employers?

The case provides a reminder for employers that they must carefully consider how practices and policies will affect employees in practice and document their reasons why it is necessary if there is a risk of them placing a particular group at a disadvantage. While tribunals can take judicial notice of the fact that women are more likely to bear childcare responsibilities, this alone is not sufficient to establish indirect discrimination. Claimants must still demonstrate a specific group disadvantage resulting from the policy or requirement in question.

Issues surrounding travel, workplace flexibility and caring commitments can be highly sensitive. Employees affected by changes to working conditions may feel undervalued or excluded if their employer does not properly consult them. When considering changes to working arrangements, to reduce the risk of claims, employers should:

• engage in meaningful consultation at an early stage, particularly where the change could disproportionately impact those with caring responsibilities;
• explain and document the business need behind the change; and
• explore alternatives that do not result in the same disadvantage and explain clearly why they do or do not work.

Taking these steps may help to persuade employees to accept the change and will improve the prospect of successfully demonstrating that the change is a proportionate means of achieving a legitimate aim.