The claimant was returning from maternity leave but, on applying for flexible working, was asked to guarantee that she could work late night shifts. The employer did go on to narrow this down to Thursdays only but the claimant still felt unable to do so because of her childcare arrangements and so resigned and issued these proceedings. The ET, in assessing the discriminatory impact of the PCP, included within the pool for comparison two male employees and concluded that the claimant could not show that the PCP put women at a disadvantage compared to men and as there was discrimination, that the respondent was not required to demonstrate that the PCP was justified.

The President of the EAT, Mrs Justice Eady, allowed the appeal as the ET had wrongly failed to address the specific PCP complained of and included within the pool two individuals to whom the respondent had not applied the same degree of compulsion, namely the requirement that they guarantee their availability for the late shifts in question. The ET’s decision was set aside and the matter remitted for rehearing.