The Chartered Institute of Payroll Professionals ……………………………………………………………Policy News Journal
The Employment Appeal Tribunal has held that the PCP (provision criterion or practice) of requiring a workforce to work over 50% of rosters and on Saturdays amounted to indirect sex discrimination on the basis it disadvantaged women.
Does the employment tribunal have to weigh the legitimate business aims of the employer against the provision criterion or practice (PCP) when determining justification for the discriminatory effect?
Yes, held the EAT XC Trains Ltd v CD and Aslef & Others .
The employee is a single mother who had three children under the age of five. She had great difficulties meeting her child care requirements and fulfilling her obligations under her full-time contract of employment.
The EAT held the PCP of requiring a workforce to work over 50% of rosters and on Saturdays amounted to indirect sex discrimination under s19 Equality Act 2010 on the basis it disadvantaged women.
The EAT considered whether the PCP was a proportionate means of achieving a legitimate aim. In this case the PCP applied to those making flexible working requests to allow for child care.
The EAT applied the Supreme Court's decision in Homer which emphasised the need for employment tribunals to take a structured approach to the question of justifying the PCP with a legitimate aim.
It held that the employment tribunal erred in law by failing to weight the legitimate aims of the employer against the discriminatory effect of the PCP. Further the employment tribunal erred in law in positing means of removing the discriminatory effect of the PCP without considering whether there was a factual basis for their suggestions and their effect on other employees.
With thanks to Daniel Barnett’s employment law bulletin which provided the details of this case.
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Territorial Jurisdiction 5 September 2016
The Employment Appeal Tribunal heard a case where an employee of the British Council, managing a teaching centre in Bangladesh, tried to bring a claim under the Employment Rights Act and the Equality Act but was rejected by the Employment Tribunal as being outside of its jurisdiction. Was an employee who worked abroad for a British company, under a contract of employment governed by English law, which required a notional deduction for UK tax and eligible to a Civil Service Pension able to show an overwhelmingly strong connection with Great Britain and thus entitled to bring claims under the Employment Rights Act 1996 and the Equality Act 2010 ? Yes, held the EAT in Jeffery v The British Council . The Claimant was an employee of the British Council managing a teaching centre in Bangladesh. He resigned and sought to bring claims against his employer which were rejected by the Employment Tribunal as being outside of its jurisdiction. The Claimant appealed.
At the EAT, HHJ Richardson allowed the appeal. The following factors were all relevant to finding "an exceptional degree of connection with Great Britain and British employment law" :
1. He was a UK citizen, recruited in the UK to work for a UK organisation 2. The employment contract was subject to English law 3. Entitlement to a Civil Service Pension - which creates a strong link to UK employment law 4. Salary subject to notional deduction for UK income tax 5. The employer was a public body playing an important role for the UK.
A series of cases well known to employment lawyers (including Lawson v Serco Ltd , Bates van Winkelhof v Clyde & Co LLP and Dhunna v CreditSights Ltd ) were applied.
With thanks to Daniel Barnett’s employment law bulletin which provided the details of this case.
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