Siobhan Murphy
Posted on 9 Feb 2021

Was there a "particular disadvantage" to women under a parental leave policy despite the fact that it applied to all men and women who took parental leave equally?

Cumming v British Airways PLC [2021] 1 WLUK 243


Mrs Cumming (the Claimant) was a female member of British Airways' (BA's) Eurofleet aircrew. In a normal working month, full-time air crew were rostered with ten paid rest days and 20 or 21 work days depending on the month.

BA had a policy 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. The policy was designed to avoid a possible perceived unfairness which could result, for example, from an employee being able to take three weeks’ parental leave in a month and having the remaining ten days in the month rostered as paid rest days.

The Claimant claimed that this policy constituted a provision, criterion or practice (PCP) that indirectly discriminated against women. This was because a higher proportion of women took parental leave than men. In a certain period, those who took parental leave were 417 women compared to 92 men (a ratio of 82:18). As such, the Claimant claimed that women were placed at a "particular disadvantage".

The Law

Indirect discrimination is concerned with a PCP which is not intended to treat anyone less favourably but which, in practice, has the effect of disadvantaging a group of people with a particular protected characteristic such as sex. Where such a policy disadvantages an individual with that characteristic, it will amount to indirect discrimination unless it can be shown to be a proportionate means of achieving a legitimate aim.

In establishing whether a PCP places a group of persons with a protected characteristic at a particular disadvantage, the starting point is to look at the impact on people within a defined "pool for comparison". The Equality and Human Rights Commission Code states that “In general, the pool should consist of the group which the provision, criterion or practice affects (or would affect) either positively and negatively, while excluding workers who are not affected by it, either positively or negatively.

What did the Employment Tribunal (ET) decide?

It was common ground that the appropriate pool in this case was one containing the female members of the Eurofleet air crew with childcare responsibilities and the male members with such responsibilities.

The ET considered that, since both 100% of the women and 100% of the men who actually took parental leave suffered the disadvantage of having rostered rest day(s) removed, there was no “particular disadvantage” to those within the pool who were women. Therefore, the ET dismissed the claim without needing to consider whether the policy was a proportionate means of achieving a legitimate aim.

The Claimant appealed against this finding. BA also cross-appealed on the basis that the ET was wrong to find that the policy involved any "disadvantage" as alleged or at all.

What did the Employment Appeal Tribunal (EAT) decide?

The EAT held that the ET had made an error of law. It held that there was "an obvious problem with the Tribunal’s reasoning here in that not all those with childcare responsibilities necessarily apply for and take parental leave, so the proportion of men and women respectively in the identified pool who are put to a disadvantage arising from the PCP are not necessarily, as the Tribunal would have it, 100% all round."

The Claimant's case was that more women with childcare responsibilities would take parental leave and thus be put to a disadvantage by the PCP.

As a result, the case has been remitted to an ET for consideration based upon this pool for comparison, and also to consider the Respondent's cross appeal that the policy does not involve any disadvantage.

What can employers take from this?

This case offers a useful reminder of what will be considered when allegations of indirect discrimination arise. The ET also clarified that the reason why more women took parental leave than men was immaterial. It therefore did not matter if this was because of childcare responsibilities or not. All that mattered was that more women did take the leave in question.

Whilst BA may still be successful in providing an objective justification for the policy, employers can take this judgment as a reminder to ensure that they consider ways in which their policies or practices may affect people differently. It is always helpful to involve employees or unions in the introduction of new policies to avoid this type of allegation arising later down the line.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Siobhan Murphy to discuss any issues you are facing.