Bradley v London School of English & Foreign Languages Ltd UKEAT/0011/18/LA
Appeal against the dismissal of the Claimant's claims of indirect discrimination and victimisation. Appeal allowed and remitted to the same ET for re-consideration.
The Claimant, as a freelance trainer, was an employee of the Respondent within the extended definition set out in section 83 of the Equality Act 2010; see section 83(2)(a). The Respondent was, therefore, prohibited from discriminating against the Claimant as to the terms on which it offered her employment or by not offering her employment; section 39(1)(b) and (c). The type of discrimination in issue was indirect discrimination. Trainers were expected to arrive at work by 8.45am for a prompt 9am start. The Claimant had problems getting into work by 8.45am because of dropping her child off at school but could generally get there by 9am. At a Preliminary Hearing the PCP which was said to have been applied by the Respondent was defined in the following terms: "all staff were to arrive early for a 9am class at 8.45am". The ET found that there was a PCP in the terms relied on by the Claimant and that it was applied to all freelancers; men as well as women. It found that the PCP did place women at a particular disadvantage compared to men; significantly more women than men are primarily responsible for the care of their children, so their ability to work particular hours is substantially restricted by those childcare commitments, in contrast to that of men. It found the PCP placed the Claimant at that disadvantage. She was unable to arrive at 8.45am consistently, partly because of geography and partly because of her childcare responsibilities. This was sufficient to establish the requisite disadvantage. The ET found that an arrival time of 8.45am and a start time of 9am were legitimate aims. The ET then found that the Respondent's approach to dealing with the start times was a proportionate means of achieving both of the legitimate aims that have been identified and the indirect discrimination claim thefeore failed. The Claimant appealed.
The EAT allowed the appeal. In order to address the question of proportionality correctly, the ET was required to compare the impact of the PCP on the affected group as against the importance of the legitimate aim to the employer in order to decide whether the PCP was both an appropriate means of achieving the legitimate aim and no more than reasonably necessary to do so. The ET's Reasons did not show that it had approached the question of proportionality in this way.
Published: 10/07/2018 10:14