This case illustrates the importance of identifying the correct provision, criterion or practice (PCP) when claiming indirect discrimination. It involved a requirement for a single mother to change her part-time hours. The claimant's case was that she was required to work Tuesday or Thursday, which the tribunal said was not of a particular disadvantage to women. The tribunal reframed the PCP, but went on to find that the claimant was not put at a particular disadvantage, and that even if she had been the PCP was a proportionate means of achieving a legitimate aim.
London South; 17 June 2009; case no.2329283/08
Employment judge: A Gumbiti-Zimuto
For the claimant: Liam Varnam, Free Representation Unit
For the respondent: Shelia Aly, non-practising counsel
Facts
Miss McMullen was employed as a dental nurse. She is a single mother and relied on her mother for childcare. She normally worked Monday, Wednesday and Friday, but for 10 out of 24 weeks in 2008 she worked on a Tuesday or a Thursday when requested. The dental surgery was overstaffed on Mondays, Wednesday and Fridays, but tended to be understaffed on Tuesdays and Thursdays due to nurses being on training courses. The claimant had been asked if she could work on those days, and had done so on a number of occasions. She was then asked to vary her days permanently and work either a Tuesday or Thursday, but refused. A short time after this, the claimant received a letter telling her that as she was unable to adjust her days she was being made redundant. She claimed unfair dismissal and sex discrimination.
Findings
The tribunal found that there was no redundancy situation and that the dismissal was unfair. However, the claim for sex discrimination failed.
The claimant's indirect sex discrimination claim was based on a provision, criterion or practice that she work on Tuesday or Thursday. The tribunal found that there was no evidence that working Tuesdays or Thursdays would put women at a particular disadvantage.
The claimant relied on London Underground v Edwards (see EOR 80), where it was stated in the Court of Appeal that: "The preponderance of single mothers having care of a child is a matter of common knowledge." Therefore, the claimant's argument was that no evidence was needed to show the disadvantage to women.
The tribunal concluded Edwards did not help the claimant. However, it said that if the PCP had been put in a slightly different way, "requiring the claimant to change her part-time working hours rather than simply stating requiring her to work on Tuesday or Thursday, we think that that does put a different gloss [on] the position because we consider that it is the case that more women have childcare responsibilities than men." It recognised that childcare responsibilities are often made well in advance and can be difficult to change. So, "on the assumption that [the] provision, criterion or practice in this case be put in that way" it concluded that the claimant had shown a PCP that put women at a particular disadvantage.
However, the tribunal then considered whether the PCP put the claimant at that disadvantage. She asserted that she could not comply with a requirement to work Tuesday or Thursday, but the evidence showed that she had in fact been able to make arrangements to work one or other of those days whenever requested. It concluded that she had not been put at a particular disadvantage as the evidence suggested that she was able to comply.
The tribunal went on to consider whether the PCP was a proportionate means of achieving a legitimate aim. It found that the respondent had the legitimate aim of balancing work flow and ensuring that there were adequate dental nurses available. Further, its view was that as the request was only to change days, from a Monday, Wednesday or Friday to work a Tuesday or Thursday, not to work additional hours, it amounted to a proportionate means of achieving its aim.