EAT Sex Discrimination: Indirect PART TIME WORKERS – PRACTICE AND PROCEDURE – Costs
Indirect Sex Discrimination – Equality Act 2010 section 19
On the indirect sex discrimination claim it was agreed that the Employment Tribunal (‘the ET’) erred in the identification of the pool for comparison. To that extent the appeal would be allowed.
Applying Home Office (UK Border Agency) v Essop [2015] EWCA Civ 609: the assessment of disadvantage required findings both as to disadvantage in the group and for the particular complainant; the ET’s findings were inadequate for that task.
Nevertheless, the ET had gone on to make a finding, in the alternative, that the PCP was justified. Following the guidance in the Supreme Court in Seldon v Clarkson Wright and Jakes [2012] IRLR 590 and Homer v Chief Constable of West Yorkshire Police [2012] IRLR 601, the balancing exercise required related to the justification of the rule, not the individual application of that rule. That being so, the ET’s conclusion stood; it had made a permissible finding on the evidence. The legitimate aim here was obvious; stating it made plain the justification: even allowing for the discriminatory impact, the ET was entitled to conclude there was nothing to be balanced against this. The obvious nature of the case meant further explanation was not required.
Part-Time Workers – Part-time Workers Regulations 2000 (‘PTWR’)
The cross-appeal related to the ET’s finding of a claim under Regulation 5 of the PTWR. Both parties agreed the ET erred in this respect: no claim under Regulation 5 was before it; it had failed to give a decision on the claim that was before it, under Regulation 7.
Rejecting the Claimant’s contention that the Regulation 5 decision could be upheld in any event; to do so would be in breach of natural justice.
As for the Regulation 7 case, one of the detriments relied on could not stand given the ET’s findings. The case would, however, need to be remitted to the same ET for consideration of the Regulation 7 claim on the second detriment.
Costs
As for the costs appeal: the ET would need to reconsider its costs decision in the light of the findings on the indirect sex discrimination case and to that extent only the costs appeal would be allowed and this matter remitted to the same ET.
Eady QC J
[2015] UKEAT 0076 – 15 – 0207
Bailii
England and Wales
Employment
Updated: 04 January 2022; Ref: scu.552834