Background
Perkins was employed by Marston (Holdings) Ltd as Head of Enforcement, Local Taxation, with her place of work stated as Helmshore in Lancashire. In 2021, the company restructured its enforcement services division, increasing the geographical remit of Perkins’ work. While her workload did not decrease, her responsibilities changed, and she was later required to travel significant distances. Perkins, who was the primary carer for her two young children, found the requirement to travel long distances difficult due to childcare constraints. Perkins was unable to commute to in-person meetings on several occasions due to childcare responsibilities. On each occasion, she attended remotely via video conference. Her employer subsequently amended the job description for Perkins’ role to introduce a requirement to “travel as and when required”. When Perkins’ subsequently refused to comply with the requirement to travel and attend in-person meetings, she was dismissed on grounds of redundancy. She subsequently brought claims for indirect sex discrimination and unfair dismissal.
Employment Tribunal decision
The Employment Tribunal (ET) found in Perkins' favour on both claims:
- Indirect sex discrimination: The ET determined that the requirement for Grade 3 Managers to travel significant distances disadvantaged women, particularly those with childcare responsibilities. It ruled that Marston had not shown that this requirement was a proportionate means of achieving a legitimate aim.
- Unfair Dismissal: The ET concluded that redundancy was not the real reason for dismissal. Instead, it found that Perkins was dismissed because she could not meet the new travel requirements.
Employment Appeal Tribunal decision
Marston appealed the decision, and the Employment Appeal Tribunal (EAT) ruled in its favour, setting aside the ET’s decision. The EAT found:
- Group disadvantage not clearly established: The ET had “judicially noted” (accepted as established fact) the "childcare disparity" (that women are more likely to be primary carers) in reaching its decision. However, whilst the “childcare disparity” itself can be “judicially noted,” due to the fact it is an obvious and notorious fact, the ET had failed to interrogate other relevant questions essential to establishing group disadvantage, such as whether the childcare disparity specifically applied to the pool of Grade 3 Managers. The EAT therefore “somewhat reluctantly” allowed the appeal on the ground that the ET’s decision making was insufficiently clear.
- Justification not properly assessed: The ET did not adequately evaluate whether Marston’s travel requirement was justified as a proportionate means of achieving the reasonable aims of business efficacy and staff morale.
- Unfair Dismissal analysis was flawed: The ET had incorrectly allowed Perkins to challenge whether the reason for her dismissal was redundancy when she had accepted this at an earlier stage. The ET erred in allowing the claimant to withdraw her concession on this point without first allowing the respondent the opportunity to make representations.
Key takeaways
- Indirect discrimination requires more than general assumptions: While courts are entitled to accept as given (or “judicially note”) that women are more likely to be primary carers, claimants must provide evidence beyond this that a particular workplace practice disadvantages women within their specific job pool. The ET failed to provide sufficient clarity of reasoning in determining how the statutory test for discrimination was met on the facts.
- Redundancy dismissals must be genuine: Even where redundancy is cited as the reason for dismissal, trade unions should scrutinize whether this falls within the definition of redundancy at section 139 Employment Rights Act 1996, and whether the redundancy process was genuine or used to mask another reason. This was not a genuine redundancy situation, but the claimant agreed it was when she represented herself. This then limited where she could take her claim.
- Clarity in pleadings matters: If an issue (such as the reason for dismissal) is conceded or agreed upon during case management, it may be difficult to later argue otherwise, and opponents should be entitled to resist applications to resile from admitted facts.
This case underscores the importance of clearly and thoroughly establishing the basis on which a provision, criterion or practice is discriminatory under the Equality Act, especially in indirect discrimination claims. It is also important that, when relying on established facts about discrimination (such as the existence of the “childcare disparity”), claimants do not overlook the requirement to prove each aspect of the relevant discrimination tests.
