Case - British Airways v. Starmer

[2005] IRLR 862, EAT - Michael Ford QC
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An employer's decision not to allow a female employee to work 50 per cent of her full-time hours, but which permitted her to work 75 per cent of her full-time hours was a provision, criterion or practice that had a disparate impact on female employees and was not justified for the purposes of the Sex Discrimination Act 1975 s.1(2)(b) .

The appellant airline company (B) appealed against a decision of the employment tribunal that B's refusal to allow the respondent female airline pilot (S) to work 50 per cent of her full-time hours was unlawful discrimination contrary to the Sex Discrimination Act 1975 s.1(2)(b) and s.6(2)(b) . S had requested to work 50 per cent of her full-time hours. B refused that request and stated that, in order for S to change to part-time working, she had to work 75 per cent of her full-time hours. B's reasons for the refusal included the burden of additional costs, inability to reorganise work among existing employees, detrimental effect on quality and performance, and inability to recruit extra employees. After rejecting S's request, B introduced a policy whereby no person who had not flown a minimum of 2000 flying hours would be transferred to part-time work that would reduce their flying below 75 per cent of the full time equivalent. The tribunal decided that B's refusal to allow S to work 50 per cent of her full-time hours, but permitting part-time work at 75 per cent, was a provision, criterion or practice that was detrimental to her and was not justified. B contended that (1) the decision that S could only work part-time hours if she worked 75 per cent of her full-time hours was a one-off decision and not a provision, criterion or practice; (2) even if there was a provision, criterion or practice, the tribunal had erred in finding that it was discriminatory as the statistics and further information relied upon by the tribunal were of irrelevant; (3) the tribunal had erred in rejecting B's justification on the grounds of resources and safety.

HELD: (1) The decision that if S were to work part time then it had to be at 75 per cent rather than 50 per cent was a requirement or a condition or a provision. If it was a requirement or condition then by virtue of the Council Directive 97/80 it had to also be a provision. It might not have been a criterion or a practice, but those words were not cumulative. It was enough that it was a provision. It need not have been imposed or applied by B as its decision was a discretionary one, but it was. There was no authority for the proposition that a provision, criterion or practice could not be one-off or discretionary. Further, there was no necessity for the impugned provision, criterion or practice actually to apply, or be applied to others. What was required to test whether the provision, criterion or practice was discriminatory was to extrapolate it to others. To avoid the problem created by a one-off provision, criterion or practice, an employer had to establish and operate a non-discriminatory and justifiable provision, criterion or practice. (2) Detailed consideration of the statistics was of no great value in the instant case. However, there was evidence, over and above the limited statistics, upon which the tribunal was entitled to, and did, rely on in reaching its conclusion in relation to disparity of impact. Taking into account all of the evidence, the provision, requiring S to work 75 per cent of her usual full-time hours if she wished to do part-time work, was one which would be to the detriment of a considerably larger proportion of women than men. That was a conclusion to which the tribunal was entitled to reach. (3) The tribunal had considered the resource considerations separately because B did not take the safety issue into account when it imposed the provision. The tribunal weighed up all of the justifications and was not persuaded that B had satisfied the onus. Accordingly, there was no basis for finding that the tribunal had acted perversely in reaching the conclusion that it did. Further, the tribunal had not erred by concluding that B had failed to provide cogent evidence as to why it would be unsafe or unsuitable for S to work at 50 per cent of her full-time hours. As regards the 2000-threshold policy, it was not the task of the tribunal or the Employment Appeal Tribunal to consider the appropriateness of that policy. The refusal of S's request was not based on the policy.

Appeal dismissed.

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