Indirect sex discrimination – childcare

In the case of Cumming v British Airways plc the EAT considered how to determine if a provision, criteria or practice (PCP) indirectly discriminated against women due to their greater childcare responsibilities. It held that the tribunal must consider whether the PCP put women at a particular disadvantage, rather than whether it applied equally to all employees with childcare responsibilities.

British Airways had a policy whereby aircrew who took three days’ unpaid parental leave in a month would lose a paid rest day in that month. The employee brought a claim arguing that this was indirectly discriminatory against women as they tended to have greater childcare responsibilities. The employment tribunal rejected her claim on the grounds that the PCP applied equally to all aircrew and so there was no particular disadvantage to women.

The EAT held that the tribunal should have considered whether the policy actually adversely impacted more women than men because women took more parental leave than men. Evidence had been produced to show that this was in fact the case. The EAT remitted the case to a fresh tribunal.

This case shows that in considering how a policy will apply to its employees, in order to avoid discrimination the employer should consider whether the policy will actually put employees with a particular protected characteristic at a particular disadvantage, rather than assuming that it will not be discriminatory because, on the face of it, it applies equally to all employees.