Natasha Allen v Primark Stores Limited

In an indirect discrimination claim, the pool for comparison must be identified by reference to the actual PCP alleged. It must include all, and only, persons affected or potentially affected by that PCP, whose circumstances are not materially different.

A tribunal errs if it recasts a PCP requiring an employee to guarantee availability for a shift as merely being asked to work it. Employees who may occasionally volunteer or be asked to assist, but are not subject to the same compulsion, should not be included in the pool. A local pool may be lawful where it logically tests the allegation, but an unsafe pool requires the decision to be set aside and reheard.

The claimant, a department manager returning from maternity leave, sought a flexible-working arrangement because her childcare responsibilities prevented her from guaranteeing availability for late shifts. The respondent accommodated her on most days but required her to remain available for Thursday late shifts.

She brought claims of indirect sex discrimination and constructive unfair dismissal. The Manchester Employment Tribunal dismissed both claims, holding that its pool included two male managers with childcare responsibilities and that women were not thereby placed at a particular disadvantage.

On appeal, the central issue was whether the tribunal had identified a lawful pool for assessing the discriminatory impact of the PCP requiring guaranteed availability for Thursday late shifts.

1. Appeal allowed. The Employment Tribunal’s decision was set aside and the claims were remitted for rehearing.

2. Under section 19 of the Equality Act 2010, read with section 23, the appropriate comparison pool is identified by the PCP alleged. It must comprise those affected or potentially affected by that PCP, provided there is no material difference in their relevant circumstances.

3. The claimant’s PCP was not simply that she might be asked to work Thursday late shifts. It was the requirement that she guarantee her availability for those shifts. The ET erred by redefining the complaint at a lower level of compulsion.

4. The respondent’s own evidence distinguished the claimant from Zee and Imran. They might sometimes work Thursday late shifts when asked, but the respondent did not treat them as required to guarantee their availability. The claimant was required to be available because otherwise there would be no cover for another manager. That was a material difference for the purposes of section 23.

5. The ET therefore included in its pool two persons to whom the relevant disadvantage did not apply. Its assessment that the store-based pool suitably tested the alleged discrimination was unsafe. Although the EAT did not hold that a UK-wide pool had to be used, the error removed the logical basis for the pool selected and required the ET’s conclusions to be set aside in their entirety.

6. The constructive-unfair-dismissal claim, which had been treated as contingent on the discrimination claim, was also remitted. The detailed terms of remission were left to an order after any further representations.

• Employment Appeal Tribunal: Appeal allowed; the Manchester Employment Tribunal’s dismissal of the indirect sex discrimination and constructive unfair dismissal claims was set aside and the matter remitted for rehearing: [2022] EAT 57.
• Manchester Employment Tribunal: Dismissed the claimant’s claims of indirect sex discrimination and constructive unfair dismissal.