Indirect discrimination: to what extent does a requirement to travel outside of core childcare hours create disadvantage to women?

Despite significant changes in societal and family norms, women still shoulder more childcare responsibilities than men. Tribunals have the power to take this fact into account, where relevant, without any specific evidence put before them. But when a woman argues that she has been indirectly discriminated against because of childcare responsibilities, is this fact enough to satisfy the ‘group disadvantage’ element of the claim or is there more to it than that?  

The Employment Appeal Tribunal (EAT) in Marston Holdings Ltd v Perkins had to consider the correct approach to the ‘group disadvantage’ element of an indirect sex discrimination claim when the tribunal took ‘judicial notice’ of this childcare disparity.  

The law on indirect sex discrimination 

Under section 19 of the Equality Act 2010, indirect sex discrimination occurs when: 

• An employer applies a provision, criterion or practice (PCP) to a group of people which includes people of different sexes 
• The PCP must put people of the employee's sex at a particular disadvantage (in other words there must be a ‘group disadvantage’)
• The PCP must also put the specific employee at that particular disadvantage
• And the employer cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim

There are several ways to determine if there is group disadvantage. Statistical or some other form of evidence may be provided, or tribunals can sometimes recognise certain facts without needing evidence or admissions from the parties when matters are so obvious. This is known as taking ‘judicial notice’. For example, many cases have acknowledged that there is a childcare disparity in what women are more likely to have childcare responsibilities than men.  

The EAT in the case of Dobson v North Cumbria Integrated Care NHS Foundation Trust explained that taking judicial notice of the childcare disparity does not necessarily mean that group disadvantage is made out. The specific circumstances must also be considered. 

The EAT in Dobson explained that the childcare disparity means that women are more likely to find it difficult to work certain hours (e.g. nights) or changeable hours (where the hours are dictated by the employer) compared to men because of childcare responsibilities. If the PCP requires working to such arrangements, then the group disadvantage would be highly likely to follow. However, if the PCP requires working any period of 8 hours within a fixed window or involves some other arrangement that might not necessarily be more difficult for those with childcare responsibilities, then it would be open to the tribunal to conclude that the group disadvantage is not made out. It depends on the specifics of the PCP and if it clearly creates difficulties for women as a group. 

Facts

Mrs Perkins, head of enforcement local taxation, managed the administrative team and field agents from Helmshore. 

During the restructuring of the enforcement services division, Mrs Perkins was informed that while the management of field-based enforcement agents would be transferred elsewhere, the enforcement work for Darlington, Epping, and Birmingham would transfer to Helmshore and she would therefore be responsible for a bigger administrative team. 

While the company changed their plans a couple of times, eventually Mrs Perkins was told that the enforcement work would transfer to Helmshore, as originally planned, but she was required to travel to link in with other services and other operational managers. 

Mrs Perkins explained that if travel was required, the role was no longer suitable for her because she had to be able to return in time for childcare. She was told that travel could be limited to one day per month but if that was unacceptable the change would be enforced, and she was provisionally selected for redundancy. 

During the consultation meetings, she was told that as a grade 3 manager her position and seniority required travel to break down barriers, lessen the impact on future business acquisitions, and that it was part of the organisation's culture. 

She was subsequently given notice of redundancy and brought claims of indirect sex discrimination and unfair dismissal. 

What did the parties argue? 

Mrs Perkins argued that the travel requirement, which led to her dismissal, disadvantaged her due to her childcare responsibilities. She argued that the requirement more likely disadvantaged women than men, because women often bear primary childcare duties. She personally suffered because she couldn't secure any additional childcare to allow her to travel. 

Her employer acknowledged the childcare disparity but argued that this was insufficient to prove group disadvantage. In any event, they argued that the requirement was justified to achieve business efficacy and for staff morale.

At a preliminary hearing, Mrs Perkins accepted her redundancy was genuine and her selection fair but argued her dismissal was unfair because of the insufficient effort to find an alternative role. However, at the full merits hearing, she disputed the redundancy, claiming her job still existed and she could have continued to manage the team remotely. Her employer argued that she was dismissed because of redundancy and that she had been offered a reasonable alternative role which required travel.  

What did the tribunal find?

1. Indirect Sex Discrimination

The tribunal held that the PCP was the requirement to travel significant distances which was applied equally to men and women who were grade 3 managers. 

It took judicial notice of the fact that women are the primary carers of small children and held that a woman with primary childcare responsibilities would not be able to perform all elements of the grade 3 management role which required travel. Without a live-in childcare provider, the tribunal said that it's only possible to secure childcare between the hours of 7am and 6pm. Therefore, the travel requirement for a woman to leave home before 7am and return after 6pm would put women, as primary carers, at a particular disadvantage. 

On the balance of probabilities, to perform her duties, Mrs Perkins would need to leave in the early hours when no childcare was available and wouldn't return by 6pm to pick up her children. The tribunal held that the PCP put her at a disadvantage as she could not perform that part of her role. 

In terms of the defence put forward by the employer, the tribunal said it hadn't provided any evidence that staff morale was impacted by her remote management, or negatively impacted the service. Therefore, the tribunal held that it wasn't proportionate to require travel of significant distances in her role to fulfil business efficacy and staff morale. 

Consequently, she won the complaint of indirect sex discrimination. 

2. Unfair dismissal 

The tribunal held that Mrs Perkins' concession at the preliminary hearing that the redundancy was genuine wasn't binding. While her job title no longer existed and some tasks reassigned, her role and duties remained. The need for her to work was not redundant. The tribunal found she was really dismissed for refusing to travel long distances, and there wasn't a fair reason for her dismissal. 

The unfair dismissal claim was therefore successful. 

The employer appealed.

What did the EAT find?

1. Indirect sex discrimination

The EAT explained that when the need to take judicial notice of the childcare disparity arises, the tribunal's task is to consider the particular nature of the PCP and determine if that clearly gives rise to difficulties for women to establish a group disadvantage. Here, the tribunal failed to take follow the approach as set out in Dobson v North Cumbria Integrated Care NHS Foundation Trust and hadn't considered if women suffered a group disadvantage because of the travel requirement. 

As to whether the travel requirement was justified, the EAT said that given the tribunal had found it had been imposed on all the company's grade 3 managers, the issue for the tribunal was whether that requirement was justified as a general rule. But the tribunal only considered the application of the PCP to Mrs Perkins. There was no analysis of why in particular, coming out of the pandemic, and wishing to build up relationships and promote knowledge transfer in a time of change and potential acquisitions of other businesses, it considered it necessary to impose the travel requirement on all its grade 3 managers. 

Unfair dismissal

The EAT found that the tribunal were wrong to allow Mrs Perkins to change her pleaded position and/or withdraw her concession that the reason for her dismissal was redundancy. Had the company known that the reason for dismissal was in dispute, they may have put an alternative case forward that her employment was terminated for ‘some other substantial reason’, another potentially fair reason.  

The EAT therefore allowed the appeal. 

Comment

The provisions relating to indirect discrimination in the Equality Act were amended in January 2024 and now apply to discrimination by association. This means that where a group which shares a protected characteristic is put at a particular disadvantage by a PCP, a person who is also put at that same disadvantage may claim discrimination even if they do not share the characteristic in question. 

That means that a man who also has childcare responsibilities would also be able to bring a claim if he is disadvantaged by a policy that adversely affects women because they have childcare responsibilities.

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