The Claimant was a female member of British Airways (BA’s) Eurofleet aircrew. BA had a policy (accepted as being a PCP) that members of crew who took parental leave under the Maternity and Parental Leave etc Regulations 1999 would have one paid rest day removed for each three days’ parental leave taken in any monthly roster. She claimed that this policy involved indirect discrimination on grounds of sex because a higher proportion of women took parental leave than men and that the policy therefore put women at a ‘particular disadvantage’. It was common ground that the appropriate ‘pool’ for comparison was all crew members (both male and female) who had childcare responsibilities. The Employment Tribunal (ET) rejected the claim on the basis that all crew members (whether male or female) who took parental leave would lose the paid rest day(s). This was an error of law since not all crew members with childcare responsibilities would necessarily take parental leave and the proper comparison was between the impact of the policy on women with childcare responsibilities and the impact on men with childcare responsibilities. The Claimant’s appeal was allowed.
BA cross-appealed on the basis that the ET was wrong to find that the policy involved any ‘disadvantage’ at all. The ET had decided in effect that it was self-evident that this was so but did not consider BA’s arguments that it did not represent a ‘disadvantage’ but was in effect a function of the rostering system. BA’s arguments were worthy of consideration and the ET therefore made an error of law in failing to consider them; BA’s cross-appeal was therefore allowed.
The ‘particular disadvantage’ and ‘disadvantage’ issues were remitted to a fresh ET to be considered again on the same evidence along with the issue of justification which remained outstanding.
Citations:
[2021] UKEAT 0337 – 19 – 2201
Links:
Jurisdiction:
England and Wales
Employment
Updated: 09 December 2022; Ref: scu.661681