Shackletons Garden Centre Ltd v Lowe

Indirect discrimination requires proof that the claimant personally suffered a disadvantage from the provision, criterion or practice, as well as proof of group disadvantage. A detriment arising solely from a claimant’s personal choice may not satisfy that requirement. The tribunal must make sufficient findings about the practical effect of the working requirement on the claimant. It must also separately assess whether the practice was a proportionate means of achieving a legitimate aim. An employer’s willingness to consider alternative arrangements may be relevant to proportionality, but it is not determinative without findings addressing the competing considerations.

The Employment Tribunal found that the employer’s requirement that staff work weekends was a provision, criterion or practice which placed women at a particular disadvantage under section 1(2) of the Sex Discrimination Act 1975. It also found that the claimant was personally disadvantaged, that the employer had not established proportionality, and that her resignation amounted to constructive unfair dismissal.

The employer appealed. The Employment Appeal Tribunal considered whether the tribunal had made sufficient findings on personal detriment and had properly addressed proportionality. It concluded that both issues required reconsideration.

1. Appeal allowed and matter remitted. The tribunal’s findings that women were placed at a particular disadvantage by the weekend-working requirement were open to it and were not materially challenged.
2. The tribunal had not made sufficient findings to establish that the claimant herself was put at that disadvantage. It had not identified what specifically made rotational work, involving occasional weekend working, incompatible with her childcare arrangements. It had not determined whether her insistence on a particular nursery and fixed weekdays amounted to a self-inflicted detriment. The principle identified in Ministry of Defence v Mrs Adele MacMillan (EATS/0003/04), that detriment cannot be self-inflicted, might assist the tribunal on remission.
3. The tribunal also erred by failing to undertake the proportionality assessment. The requirement pursued potentially legitimate aims, including providing experienced weekend cover during the employer’s busiest trading period and applying the rota consistently to employees. The possibility of alternative work without weekend duties might be relevant, but the employer’s evidence that this would be difficult and its willingness to consider it could not simply determine the issue.
4. The issues could not properly be decided by the EAT on the existing material. They were remitted to a differently constituted Employment Tribunal, on the basis of the existing factual findings concerning the parties’ discussions and the absence of any binding agreement about the claimant’s return to work.

• Employment Appeal Tribunal: allowed the appeal against the Employment Tribunal’s decision of 30 July 2009 and remitted the issues of personal detriment and proportionality.
• Employment Tribunal: found indirect sex discrimination, constructive unfair dismissal and awarded compensation.