When considering direct and indirect discrimination issues in the workplace two latest legal precedents should be carefully considered by employers and HR practitioners.
The case of VL (C-16/19) 2020, is a Polish case but the decision by the Court of Justice of the European Union was determined pre-Brexit and remains a precent in the law of the United Kingdom.
The Court was asked to consider if it amounted to direct discrimination if one set of disable workers was discriminated against over another set of disabled workers? It was decided by the Court decided that such a practice was indeed direct discrimination.
The Case
The facts of the case involved a Polish hospital. The hospital had a pecuniary inducement to obtain disability certificates from its workers as this would contribute towards a disability fund. They offered a 60 Euro incentive to workers who submitted new disability certificates, however they decided to not pay those workers who had earlier provided disability certificates. The Court held such a practice was direct discrimination as the criteria was inseparably connected to the disability of those declined the allowance. The law is therefore not limited to comparisons between those with disability and those without a disability. The practice likewise indirectly placed disabled workers at a disadvantage as they had had already provided the disability certificates for reasonable adjustments to be accommodated for them.
The Employment Appeal Tribunal judgment in the case of Cumming v British Airways 2021 considered the question of indirect discrimination in relation to British Airways PCP policy. The policy stated members of British Airways crew who took parental leave under the Maternity and Parental Leave Regulations 1999 would have one paid rest day removed for each three days’ parental leave taken in any monthly rota. The employee a female argued the PCP policy discriminated against women indirectly as a greater proportion of women took parental leave than men.
The Outcome
The Court had to determine if the pool of comparison should be limited to those employees only with childcare duties. The Employment Tribunal decided it was not indirect discrimination. Its argument was the policy applied correspondingly to all crew members whether regardless of sex and there was no detriment to women. The Employment Appeal Tribunal disagreed and decided there was a case for indirect discrimination. The appropriate pool for comparison in determining this question is not the overall crew members but rather female and male crew members who have children of an applicable age and therefore have childcare duties. The case has been sent to Tribunal for consideration of the claim based upon this pool for comparison.
The article does not constitute legal advice and is only for guidance, should you require legal advice please contact the Quest HR Advice Line on 01455 852028.
