Hacking & Anor v Wilson

In an indirect discrimination claim concerning refusal of flexible working, the comparison pool should comprise employees who wanted the benefit in question. Employees with no interest in flexible working should be excluded. However, identifying a pool consisting only of employees who wanted flexible working does not make a discrimination claim impossible merely because all requests were refused. The tribunal must examine the consequences of refusal and decide whether the disadvantage was a particular disadvantage experienced by women compared with men.

A refusal to vary existing contractual arrangements to provide a new benefit is an access-to-benefit case. It is not the imposition of a new obligation where the employer is not seeking to alter the contract.

The claimant, a property manager who had returned from maternity leave, requested flexible working. The respondents refused the request, consistently refusing such requests from property managers. The claimant resigned and brought a claim of indirect sex discrimination under section 1(2)(b) of the Sex Discrimination Act 1975.

The Employment Tribunal refused the respondents’ application to strike out the claim. It nevertheless appeared to regard all property managers as the appropriate pool and characterised the case as one involving an obligation to work full time. The respondents appealed, arguing that the pool should comprise only property managers who wanted flexible working and that no disadvantage could arise because all such requests were refused.

The central issues were the correct comparison pool and whether the claim had no reasonable prospect of success.

1. The appeal was dismissed. The claim was remitted to the Employment Tribunal to proceed as accords.
2. Section 1(2)(b) of the Sex Discrimination Act 1975 concerns apparently equal treatment which produces disproportionate adverse consequences. The claimant still had to establish that refusal of flexible working put women at a particular disadvantage compared with men and that she was placed at that disadvantage.
3. Following the ratio of Rutherford v Secretary of State for Trade and Industry [2006] IRLR 551, the appropriate pool in an access-to-benefit case comprised property managers who wanted flexible working. Those with no interest in the benefit should not be included.
4. The respondents’ submission that the claim necessarily failed because every person in the pool received a refusal was rejected. Different employees might suffer different consequences. Some might be unable to work full time because of childcare arrangements, while others might prefer part-time work without being disadvantaged in the relevant legal sense. The question whether women experienced a particular disadvantage remained for the Tribunal.
5. The Employment Judge was wrong to treat the case as involving the imposition of an obligation to work full time. The existing contract had not been changed and the respondents were not imposing a new obligation. The complaint concerned refusal to vary the contract to provide a new benefit. Paragraph 78 of Rutherford did not require a different conclusion.
6. The Employment Judge’s observations that the pool should comprise all property managers, and that a prima facie case had been established, should not be treated as determining those issues.

• Employment Tribunal, Edinburgh: refused the respondents’ application to strike out the indirect sex discrimination claim. The judgment was registered on 2 September 2009.
• Employment Appeal Tribunal: dismissed the appeal and remitted the case to the Employment Tribunal.