Indirect discrimination not a statistical formula

Employers must ensure their employment practices can be justified following
an EAT ruling on sex discrimination claims

To fall foul of indirect sex discrimination, a workplace practice must have
a disproportionate effect on one gender compared to the other. So at what point
should a statistical difference trigger sex discrimination law? That was one of
the questions the Employment Appeal Tribunal had to rule on in Chief Constable
of Avon & Somerset Constabulary v A Chew (EAT Case No 503/00).

The facts

Ms Chew was a police officer with the Avon and Somerset Constabulary. Her
request to work part-time was rejected because the hours she requested did not
meet the requirement that part-time police officers must work a rotating shift
pattern.

Ms Chew brought a claim for indirect sex discrimination. To succeed she had
to establish that the constabulary had applied a requirement or condition which
applied or would have applied equally to a man but:

– Which was such that the proportion of women who could comply with it was
considerably smaller than the proportion of men who could comply with it

– Which was not objectively justified, and

– That the requirement or condition was to her detriment because she could
not comply with it

A key question for the tribunal was whether the proportion of women who
could comply with the rotating shift requirement was considerably smaller than
the proportion of men who could comply.

The tribunal used the entire force as its pool, numbering 3,016 officers –
435 women and 2,581 men. Since 10 female officers and only one male officer
could not meet the shift requirement, the tribunal calculated the difference
between the sexes in terms of ability to comply with the requirement was 2.26
per cent.

Given the small percentage difference, it was not clear whether the
‘disparate effect’ test had been satisfied. Previous case law indicated that a
percentage difference of no more than 5 per cent, or thereabouts is inherently
unlikely to satisfy the test.

However, the tribunal took into account the wider facts and concluded the
proportion of women who could comply with the shift requirement was considerably
smaller. As a result of this decision Ms Chew won her case.

The appeal

The constabulary appealed the tribunal’s decision, arguing that the
percentage difference of 2.26 per cent did not warrant the tribunal’s
conclusion that the proportion of women who could comply with the shift
requirement was considerably smaller than the proportion of men.

The EAT dismissed the appeal, holding that the tribunal was entitled to find
that the disparate impact test was satisfied and ruling that tribunals can have
regard to wider circumstances in addition to the statistical test.

For example:

– The make-up and overall numbers of the workforce under consideration

– That if the numbers of women are small, a reduction could have a dramatic
effect on the proportion who are disadvantaged

– The likely adverse effect on single mothers and mothers with primary
childcare responsibilities

Key points

– Employers do not have to apply requirements that have precisely the same
impact on men and women

– Rather, the obligation is to avoid applying unjustifiable practices that a
considerably smaller proportion of one gender can comply with

– Employers should always ensure that their employment practices can be
objectively justified on business grounds

Nicholas Moore is head of employment at Osborne Clarke

Comments are closed.