Sex discrimination: indirect discrimination
Kate Brittin of Lewis Silkin continues her series of articles on sex discrimination by explaining the concept of indirect discrimination and the recent changes to the definition. The article also looks at how indirect discrimination applies in the context of flexible working requests, and assesses a recent high-profile case on this issue.
Introduction
Indirect discrimination arises where the same 'provision, criterion or practice' is applied to everyone, but in practice has a worse effect on one sex than the other. For example, imposing a requirement that all employees be available to work late at short notice is, on its face, gender neutral. However, in reality it operates to the disadvantage of women, many more of whom are likely to have to get home on time to look after children.
Other examples of indirect discrimination given by the Government in its consultation paper on the recent amendments to the Sex Discrimination Act 1975 include:
a change in working hours or location imposed by the employer;
a requirement for employees to be mobile with regard to their workplace;
a provision that employees should be available to work their normal contractual hours without variation;
a requirement to work overtime;
a contractual obligation to undertake long hours or a practice of doing so;
a refusal to allow employees to work from home; and
a requirement to work without set hours, but as and when required.
The October 2005 reforms
The legal definition of indirect sex discrimination in the Sex Discrimination Act 1975 was changed on 1 October 2005 by the Employment Equality (Sex Discrimination) Regulations 2005, bringing it into line with other UK discrimination laws and complying with the requirements of the amended Equal Treatment Directive (2002/73/EC).
The old definition
The old definition of indirect sex discrimination for employment and vocational training purposes was as follows. A person discriminates against a woman if the person applies to her a provision, criterion or practice that the person applies or would apply equally to a man, but:
which is such that it would be to the detriment of a considerably larger proportion of women than of men; and
which the person cannot show to be justifiable irrespective of the sex of the person to whom it is applied; and
which is to her detriment.
The new definition
Under the new definition of indirect sex discrimination a person discriminates against a woman if the person applies to her a provision, criterion or practice that the person applies or would apply equally to a man, but:
which puts or would put women at a particular disadvantage when compared with men; and
which puts her at that disadvantage; and
which the person cannot show to be a proportionate means of achieving a legitimate aim.
What has changed?
The two most important aspects to these changes are:
a move away from the detailed analysis of statistics that was previously involved in assessing whether 'a considerably larger proportion of women than of men' could comply with a requirement; and
the replacement of the concept of justification with a requirement that the provision, criterion or practice be a 'proportionate means of achieving a legitimate aim'.
Using statistics
As can be seen from the recent case of British Airways Plc v Starmer EAT/0306/05 (details of which are set out below), employment tribunals are often willing to take account of their experience of the wider world and normally do not limit themselves to a detailed statistical analysis of the pool for comparison in the particular case with which they are dealing. For example, they are generally willing to conclude that women are more likely to have childcare responsibilities than men, even if this is not necessarily so on the specific facts of a particular case.
The new wording expressly recognises that statistical evidence will not always be required to establish adverse impact on one sex. There is now no limitation on the methodology that tribunals can use in deciding whether a provision, criterion or practice puts women at a particular disadvantage. Their findings could, for example, be based on evidence from expert or other witnesses. However, while this will make it more straightforward for tribunals to take the wider view, it is unlikely to change the outcome of many cases.
Justification
Under the pre-October 2005 law, employers had a defence to a discrimination claim if they could show that the discriminatory effect of the provision, criterion or practice was 'justifiable'. The concept of 'justification' was not defined in the Sex Discrimination Act 1975 and was interpreted by the tribunals and courts in accordance with European law, requiring the employer to show that it was pursuing a reasonable and proportionate means of achieving a legitimate aim.
Bearing this in mind, the practical effect of the second change to the definition is likely to be minimal, as it merely brings the wording into line with the way in which 'justification' was already being interpreted by the courts. The new test requires the benefit to the employer of the indirectly discriminatory provision, criterion or practice to be measured against the detriment to the employee.
Flexible working requests
Employees have no right to work on different terms from those in their contract of employment unless this is expressly permitted in the contract. However, since April 2003 they do have the statutory right to ask their employer for a flexible working arrangement and to have their employer seriously consider that request in accordance with a set procedure.
The right is, however, a very limited one for several reasons. Employers are entitled to refuse a flexible working application by pointing to one or more of a number of 'business reasons' set out in the legislation. If the employee brings a claim challenging this, the employment tribunal's role is merely to verify whether the employer followed the proper procedural steps and examine any disputed facts as to whether its business reason applies.
Unless the employee can somehow persuade the tribunal that the employer's decision was based on facts that are 'incorrect', it is hard to go behind the employer's business case. There is minimal scope for the employee to challenge the reasonableness of the employer's decision to refuse a request for flexible working and certainly no requirement on the employer to justify its decision on objective grounds. For example, a parent is responsible for opening the employer's shop at 9 am, but asks for a flexible working arrangement involving working from 9.30 am. The employer refuses the request, citing 'inability to reorganise work among existing staff', one of the statutory reasons, and saying 'in our judgment, for security reasons, key holders must have worked for the company for at least a year, and, as all of our other staff have been here less than a year, none of them can be allowed to arrive early and open the shop'. The employee would be able to challenge the reason by saying that the employer had got the length of service facts wrong, ie that other employees had been there for at least a year, but not by saying that the decision was unreasonable.
In any event, the most that a tribunal can award for an employer's breach of the flexible working provisions is up to eight weeks' pay (the amount of a week's pay being subject to an upper limit of £280 for these purposes).
However, although the statutory right to request flexible working may be limited in scope, employees who wish to work flexibly have another avenue to follow. It is of much more significance that a refusal to allow an employee to work flexibly, for example on return from maternity leave, could lead to a claim for indirect sex discrimination. Compensation for unlawful discrimination is unlimited, so this is potentially a far more powerful weapon for an aggrieved employee.
Under the new definition of indirect sex discrimination that came into force in October 2005, the following conditions must be satisfied in order for a claim to succeed.
A provision, criterion or practice must be applied.
The provision, criterion or practice must put the woman at a disadvantage.
The employer cannot show the provision, criterion or practice to be a proportionate means of achieving a legitimate aim.
In practice, most women have no difficulty getting over the first two of these three hurdles and cases will generally turn on the question of whether the employer can show that refusing to allow a flexible working arrangement is 'a proportionate means of achieving a legitimate aim'.
Employers are much more likely to be able to justify the refusal if they have consulted fully with the employee before rejecting the request with a 'can do' rather than 'can't do' approach. The employer should seek to find ways around its concerns before rejecting a request. Any blanket policy not to allow part-time work is almost certainly going to be unlawfully discriminatory.
Some jobs can be done part time merely by reducing hours. Other jobs may require full-time commitment but may be suitable for job-sharing. One possible justification for refusing a request to work part time would be an inability to locate a suitable job-share partner for the employee who has put in the request.
Male employees
Male employees wanting to work on a part-time basis for childcare reasons will not generally be able to claim indirect sex discrimination because it will not be possible for them to show that the employer's practice is disproportionately disadvantageous to men. However, if a comparable female employee either has been or would be likely to be granted the right to work flexibly, it may be possible for a male employee to claim direct sex discrimination, ie less favourable treatment on grounds of sex.
Practical tips when dealing with flexible working requests
Make sure you stick to the statutory procedure when dealing with a request for a flexible working arrangement.
Give serious consideration to the request and engage in real consultation with the individual concerned, even if you believe from the outset that the request will have to be turned down. Consider a trial period if the issue is not clear cut.
As far as possible, frame responses to statutory requests in terms of judgments rather than facts, since tribunals cannot criticise an employer's business case for refusing a request unless it is based on incorrect facts. However, keep in mind the possibility of indirect sex discrimination claims by women.
Consider setting up active programmes to encourage a work-life balance, including working arrangements with flexible and reduced hours. An increasing number of employers are seeing this as a way to encourage experienced and highly trained employees to return to work after maternity leave.
The recent case of British Airways Plc v Starmer EAT/0306/05, in which a female airline pilot successfully challenged British Airways' refusal to allow her to halve her working hours after her return from maternity leave, provides a good example of the principles discussed above (although it was decided under the pre-October 2005 definition of indirect discrimination). In addition, this case has received considerable publicity and is likely to be influential in other indirect sex discrimination claims challenging refusal of flexible working requests.
Mrs Starmer, one of only 152 women pilots out of 2,932 working for British Airways at the time, claimed that her employer's refusal to allow a 50% reduction in hours amounted to unlawful indirect sex discrimination. British Airways had agreed that she could reduce her hours, but no lower than to 75% of full-time hours.
The airline defended the claim on the grounds that:
it had not applied a provision, criterion or practice, a prerequisite for an indirect discrimination claim;
even if a provision, criterion or practice had been applied, there was no evidence that it detrimentally affected more women than men; and
in any event, the refusal of the request was objectively justified because of safety concerns and the practical difficulties of covering the rest of the claimant's hours.
Provision, criterion or practice
British Airways argued that it had not applied a provision, criterion or practice because the decision in Mrs Starmer's case was a one-off. The employment tribunal found, and the Employment Appeal Tribunal (EAT) agreed, that there was no reason why a one-off decision could not qualify for these purposes. The provision, criterion or practice was to the effect that, in order to continue working for British Airways, Mrs Starmer was obliged to do so under a contract requiring her to work more than 50% of the time, ie either 75% or 100% of full-time hours.
Disparate impact
British Airways' second line of defence was that, even if it had applied a provision, criterion or practice, there was no evidence that it affected more women than men. The statistics in the case were inconclusive, but neither the tribunal nor the EAT regarded that as an insurmountable obstacle.
According to the EAT, while 'raw statistics' are important in indirect discrimination cases, they are not the sole measure. The tribunal was entitled to use its knowledge of the wider world and to conclude that more women then men have childcare responsibilities and are therefore more likely to be adversely affected by a refusal to permit a reduction to 50% hours.
Justification
Finally, the tribunal and the EAT were not persuaded by British Airways' attempts to justify the refusal to allow Mrs Starmer to halve her hours, having already agreed that she could work 75%. The company's arguments rested on two grounds, resources and safety, and included the following.
Employing more than one pilot to carry out one full-time role would entail additional training costs.
A reduction in 'full-time equivalent' pilot numbers, caused by more pilots opting to work half time, would mean staff shortages while more pilots were recruited and trained. In addition, British Airways had at the time imposed a recruitment freeze and all its training resources were taken up with training existing pilots to fly new planes.
Although not an issue considered at the time of Mrs Starmer's request, British Airways argued at the tribunal that reducing her hours by half could lead to safety risks.
The tribunal dismissed the resources arguments, which it considered to be self imposed to some extent, for example by the freeze on recruitment, and not sufficient to outweigh the detriment to the claimant.
As regards safety, the concerns expressed by British Airways were not supported by the evidence, which was that Mrs Starmer was a skilled and competent pilot whose performance would not be affected by working half her previous hours. In any event British Airways had good performance monitoring procedures so any slide would be picked up.
The EAT could find no fault in the way that the tribunal had assessed the relevant evidence and dismissed British Airways' appeal.
The implications
Particularly significant is the EAT's approach to justification. First, the EAT rejected the contention that the resource constraints justified the discriminatory effect of the provision, criterion or practice. Second, in relation to the health and safety considerations, the EAT emphasised the importance of assessing the situation of the claimant individually by reference to her own skills and experience. This confirms that employers will find difficulty in relying on generalised arguments and assumptions when seeking objectively to justify indirect sex discrimination against a particular claimant.
On the latter point, the EAT did in fact criticise one statement by the tribunal: '…the respondent has not given any cogent evidence as to why it would be unsafe or in any way unsuitable for the claimant, or any other pilot, to fly at 50% full time'. The EAT said that mention of 'any other pilot' went too far as the issue in this case was limited to whether the provision, criterion or practice was justified in relation to Mrs Starmer.
As a result of Mrs Starmer's win at tribunal, British Airways introduced a safety measure across the board whereby no pilot with fewer than 2,000 flying hours can reduce his or her working hours below 75%. The EAT stressed that its ruling had no bearing on the 2,000-hour threshold now in operation. This may, however, be open to challenge, with the EAT having emphatically supported the tribunal's view that it is the safety risk presented by each individual pilot that must be taken into account.
British Airways has stated that it will be instigating a further appeal to the Court of Appeal.
Would this case have been decided differently under the new rules?
Had the new definition of indirect discrimination been in force at the time of the refusal to allow Ms Starmer to work part time, the outcome would almost certainly have been the same.
Had they been asked to assess whether Mrs Starmer was put 'at a particular disadvantage' by the provision, criterion or practice, the tribunal and the EAT would have taken account both of the 'raw statistics' in the case and of their knowledge of the wider world and reached the same conclusion - that more women then men have childcare responsibilities and are therefore more likely to be put at a particular disadvantage by a refusal to permit a reduction to 50% hours.
Had they been asked to decide whether British Airways' refusal was a 'proportionate means of achieving a legitimate aim', the tribunal and EAT are likely to have reached the same conclusion regarding the issues put forward by the company relating to resources and safety.
Next week's article will provide a sex discrimination case study.
Kate Brittin is a member of the Employment Team at Lewis Silkin (Kate.Brittin@lewissilkin.com)
Further information on Lewis Silkin can be accessed at www.lewissilkin.com
