Marston (Holdings) LTD v A Perkins

Key principles: The Employment Appeal Tribunal considered the correct approach to proving group disadvantage and justification in an indirect sex discrimination claim under section 19 Equality Act 2010 and the correct approach to determining the reason for dismissal and fairness under section 98 and section 139 Employment Rights Act 1996.

The tribunal below had found that a PCP requiring travel of significant distances disadvantaged women because of the childcare disparity and that the respondent had failed to justify that PCP; it also found that the claimant had not been dismissed for redundancy and that her dismissal was unfair. The EAT allowed the employer's appeal on multiple grounds.

Material grounds for decision: the ET’s reasoning on group disadvantage was unclear as to whether it treated the childcare disparity as intrinsic to the PCP or merely an obvious consequence, and it failed properly to assess the PCP as a general rule rather than solely by reference to its application to the claimant. The ET’s justification analysis did not adequately engage with the respondent’s pleaded general business aims or critically evaluate whether the travel requirement was reasonably necessary as a rule. On unfair dismissal the ET improperly reopened a conceded issue about redundancy without first permitting the parties to address that change, and its reasoning did not sufficiently explain why the respondent had failed to establish a fair reason for dismissal.

This is an appeal from an Employment Tribunal sitting at Liverpool which had upheld a claim by the respondent (the claimant in the ET) for indirect sex discrimination and for unfair dismissal. The claimant had been a Grade 3 manager and Head of Enforcement; following a restructure the respondent required Grade 3 managers to travel significant distances. The claimant had childcare responsibilities and declined some face-to-face meetings. She was consulted, offered alternative arrangements limited to minimal travel, given notice of redundancy and left the business. She brought ET claims for indirect sex discrimination (a PCP requiring travel significant distances) and unfair dismissal (chiefly that the employer had failed to offer a suitable alternative without the travel requirement).

Procedural posture: the ET (Employment Judge Ainscough with two members) found the PCP applied generally to Grade 3 managers, took judicial notice of the childcare disparity and concluded that the PCP put women at a particular disadvantage and was not proportionate. It also found the claimant had not in truth been dismissed for redundancy and that the true reason (her refusal to travel) was not a fair reason under section 98 ERA. The employer appealed on seven grounds grouped under: (1) disadvantage, (2) justification, and (3) reason for dismissal.

Issues framed:

• whether the ET correctly identified and assessed group disadvantage and the use of judicial notice of the childcare disparity;
• whether the ET properly considered justification as a matter concerning the PCP as a general rule and carried out the required critical evaluation of the employer’s legitimate aims and proportionality;
• whether the ET was entitled to depart from the claimant’s earlier concession that redundancy was the reason for dismissal and whether it applied the correct test under section 139 ERA when assessing redundancy.

Court’s reasoning and outcome: the EAT held the ET’s reasoning on group disadvantage to be unclear and therefore unsafe: it was not clear whether the tribunal treated the childcare disparity as intrinsically part of the PCP or had simply drawn an extrapolation from the claimant’s individual circumstances, and the tribunal did not give the parties appropriate scope to address its use of its own apparent social-fact findings. The EAT also found inadequate reasoning on justification because the ET did not engage with whether the travel requirement was justified as a general rule for all Grade 3 managers and did not perform the required critical evaluation of the employer’s business aims. On unfair dismissal the EAT held that the ET should not have reopened what had been, at case management, treated as an agreed issue (that redundancy was the reason for dismissal) without first allowing the parties to address that change; the ET’s reasoning under section 139 was also insufficiently explained. The EAT allowed the employer’s appeal on the specified grounds and remitted disposal directions to the parties.

Appeal allowed. The EAT held that the Employment Tribunal’s findings on group disadvantage and on justification of the PCP were unclear and inadequately reasoned (the tribunal failed properly to address the PCP as a general rule and to explain the use of judicial notice), and that the tribunal unfairly re-opened the reason for dismissal (redundancy) without permitting the parties to respond; accordingly the ET’s conclusions on indirect sex discrimination and unfair dismissal were unsafe and the appeal was allowed.

Appeal to the Employment Appeal Tribunal from the Employment Tribunal (Liverpool, Employment Judge Ainscough with two lay members) judgment sent to the parties on 16 January 2024 which had upheld the claimant's claims. Neutral citation of this appeal: [2025] EAT 20.