Indirect Sex Discrimination

Peninsula Team

August 15 2016

Dutton v The Governing Body of Woodslee Primary School and another

This case involved an appeal against an employment tribunal (ET) finding that the discriminatory practice of requiring employees to work full time was a proportionate means of achieving the legitimate aim of providing stability for special needs children in schools.

The claimant worked as a full time teacher teaching children with special educational needs, including children whose needs fell in the autism spectrum. It was commonly accepted that the children needed a significant degree of continuity and stability in their lives. The claimant fell pregnant and was due to take maternity leave from October 2013 to June 2014. Before the leave started, she made a written request to return after maternity on a part-time basis, working only four days a week. The request was refused in October 2013 on the basis that the demands of the school meant stability was required. The claimant appealed this decision but this was rejected. She then brought a claim for indirect sex discrimination.

Indirect discrimination is where the employer imposes a provision, criterion or practice (PCP) which has a discriminatory impact on a group with a protected characteristic. Importantly, indirect discrimination can be justified where the PCP is a proportionate means of achieving a legitimate aim.

The ET found that the requirement to work full-time was a PCP which placed the claimant, and others with the protected characteristic of being of the female sex, at a disadvantage. The school did have a legitimate aim of providing continuity and stability for the children, a need highlighted by the National Autistic Society. When determining if the PCP was a proportionate means of achieving this aim, the ET highlighted the fact that there were other schools within the local area that may have been able to accommodate the part-time working request. Failing to provide more assessment on this issue, the ET found that the PCP was a proportionate means of achieving the aim, therefore, the claim of indirect sex discrimination was dismissed.

The claimant appealed to the Employment Appeal Tribunal (EAT) on the grounds that the decision was inadequately reasoned. The law requires ET to carry out, as a minimum, a critical evaluation of whether the employer’s reasons demonstrate a real need for the PCP in question. Although the ET identified competing criteria, such as the alternative schools and the need for stability, it did not carry out the required assessment to determine the issue correctly. Therefore, the EAT remitted the case to a different ET to determine the question of whether the requirement to work full-time was a proportionate means of achieving the legitimate aim of stability for pupils.

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