Case law: Employer justifies indirect discrimination against part-time, female employees on change of 'stand-by' rules
Employers should consider whether any proposed changes, such as putting part-time, female employees on stand-by, are potentially discriminatory, and take steps to minimise the disadvantages they may create and/or ensure they can justify the changes as a proportionate means of achieving a legitimate aim. If they don't, they risk a successful discrimination claims against them.
This update was published in Legal Alert - April 2018
Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.
A premium, long-haul airline was experiencing staff shortages among flight crew. It therefore changed its stand-by rules for cabin staff so that part-time employees had to be on stand-by duty, as well as full-time employees. Staff on stand-by had to be at Heathrow ready for duty within two hours of being allocated to a flight.
The changes were introduced because the airline insisted on a full stand-by cabin crew being available for each flight. During periods when sick leave was at a high level, this was only possible if both full and part-time crew were available for stand-by duty.
Some full-time crew had also complained the system was unfair as the requirement for them to undertake stand-by duty meant they were less able than part-time staff to adjust their working time using the airline's bidding system – the system whereby staff could swap rosters. They said this made their lives unstable.
The airline carried out a consultation process, and trialled various options, before making the changes. A number of female part-time cabin crew members argued that the changes amounted to indirect sex discrimination.
There is unlawful indirect discrimination if:
- an employer operates a provision, criterion or practice (PCP) which puts a group of employees (including the employee who is complaining about it)
- who share a 'protected characteristic' (in this case, their sex)
- at a substantial disadvantage compared with people of a different sex, and
- the disadvantage suffered by the individual making the complaint and the other members of the group are the same.
Effectively, it catches situations where an employer's PCP applies to everyone, but it has a worse effect on a particular group of employees, whose members share a protected characteristic, than the rest of the workforce.
However, a PCP will not be unlawful if it is a proportionate means of achieving a legitimate aim, for example, there are health and safety reasons for it.
The part-time cabin crew argued that because they were primary carers for their pre-school children, including them on the stand-by rota created particular difficulties for them. It meant they might have to suddenly make a long-haul trip to, say, Australia on two hours' notice. Alternative childcare was not available to them on such short notice, and it was unreasonable to ask them to line up childcare for all their stand-by days on a 'just in case' basis.
They asked for variations to the stand-by scheme, for example, that they would not be put on stand-by for longer trips, such as those to Australia. The airline's final scheme eventually put full-time staff on stand-by more often than part-time staff, but the part-time staff still brought a claim.
The Employment Tribunal (ET) agreed that female staff were more disadvantaged than male staff by the stand-by scheme, because of their difficulties organising childcare.
However, it found that the stand-by changes were a proportionate means of achieving legitimate aims of operational stability, and a fair sharing out of stand-by duties, so that the employer's indirect discrimination against the female cabin crew on grounds of their sex was lawful.
It also found that the airline was justified in insisting on a full stand-by crew for each flight in the first place, as that was necessary for it to remain competitive in the very competitive premium, long-haul flight market.
The airline was also helped by the fact it had:
- introduced a number of measures to reduce the impact of the changes on the part-time cabin crew, including allowing them to swap standby duties and take unpaid leave
- resolved individual cases of hardship with the employee concerned in every case – even to the extent of allowing employees to take carers' leave who were not legally entitled to it.
However, the ET was critical of the airline for not having recognised that its changes may have been discriminatory in the first place.
- Employers should consider whether their proposed changes, such as putting part-time female employees on standby, are potentially discriminatory; take steps to minimise the disadvantages the changes create; and/or ensure they can justify the changes as a proportionate means of achieving a legitimate aim – or risk losing a discrimination claim.
Case ref: Mrs A Hayes and Others v Qantas Cabin Crew (UK) Ltd, Case Numbers: 3347009/2016 to 3347020/2016
Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.
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