Marston (Holdings) LTD v A Perkins

Judicial notice of the childcare disparity does not itself establish group disadvantage in an indirect sex discrimination claim. The Employment Tribunal must assess the relationship between the particular PCP and the disadvantage asserted, and give sufficiently clear reasons for its conclusion.

Justification concerns the PCP as a general rule. It is not determined solely by its application to the individual claimant. The tribunal must identify and critically evaluate the employer’s legitimate aims, the rule’s discriminatory impact, and whether the rule is proportionate.

Where a party has formally conceded the reason for dismissal, the tribunal must not depart from that concession without a clear process and an opportunity for both parties to address the proposed change.

The claimant, a Grade 3 manager with primary childcare responsibility for two young children, was dismissed after declining a requirement to undertake significant travel. She brought claims of indirect sex discrimination and unfair dismissal.

The Employment Tribunal at Liverpool upheld both claims. It found that the travel PCP disadvantaged women with childcare responsibilities and was not justified. It also found that redundancy was not the true reason for dismissal, notwithstanding an earlier agreed list of issues recording redundancy as the reason.

The employer appealed. The central questions were whether the Tribunal had lawfully determined group disadvantage and justification under Equality Act 2010, and whether it could revisit the conceded reason for dismissal without hearing the parties.

1. Appeal allowed. The Tribunal’s findings on indirect sex discrimination and unfair dismissal could not stand.
2. On group disadvantage, the Tribunal was entitled to select Grade 3 managers as the comparison pool and could infer disadvantage from an individual case where appropriate. It was also entitled to proceed on the apparent basis that male comparators suffered no comparable disadvantage. However, its reasoning was unsafe because it was unclear whether it had treated the childcare disparity as intrinsically linked to being a woman, rather than assessing the relationship between that disparity and the particular travel PCP. Judicial notice that women are more likely to bear greater childcare responsibilities does not establish that every travel requirement puts women at a particular disadvantage.
3. For completeness, if the Tribunal intended to rely on its own understanding of the availability of childcare outside specified hours, fairness required it to give the employer an opportunity to address that matter.
4. On justification, the Tribunal had to determine whether the travel requirement imposed generally on Grade 3 managers was a proportionate means of achieving legitimate aims. Its reasons concentrated on the claimant’s individual circumstances and did not adequately explain whether it accepted the stated aims or critically evaluated the evidence concerning the general rule. An individual exception is not the question posed by justification.
5. On unfair dismissal, the claimant’s ET1 did not clearly concede redundancy. The agreed list of issues and case-management record, however, did record such a concession. The Tribunal could not depart from it during deliberations merely because the claimant had acted in person or had preferred redundancy to disciplinary action during employment. It should have required a clear application, or canvassed an amendment to the list of issues, and heard both parties.
6. The Tribunal’s treatment of redundancy under Employment Rights Act 1996 was also inadequately reasoned. It did not explain its approach to a reduction in the employer’s requirement for employees to perform work of a particular kind at the relevant place, or why redundancy could not remain the principal reason for dismissal.

• Employment Appeal Tribunal: Allowed the employer’s appeal against the Employment Tribunal’s decision.
• Employment Tribunal, Liverpool: Judgment sent to the parties on 16 January 2024. It upheld claims of indirect sex discrimination and unfair dismissal.