Tell it like it is – email referring to potentially discriminatory conduct not a protected act
To be protected against victimisation, an employee has to do a “protected act”, such as making an allegation that their employer has contravened the Equality Act. An allegation does not have to be express to be a protected act. However, in Chalmers v Airpoint Ltd, the EAT in Scotland found that simply referring to conduct as something that “may be discriminatory” was not on the facts sufficient for the employee to be able to bring a subsequent victimisation claim.
Ms Chalmers was a business support manager with some HR responsibilities. She complained that she had been excluded, as she saw it, from the Christmas party, as had another female employee, and that she had also been excluded from a “hardware refresh”. She specifically said in her grievance that this behaviour “may be discriminatory” but also complained about her manager’s aggressive and unhelpful manner. When she subsequently brought victimisation and other claims, the tribunal found that her email did not complain or allege that there had been a contravention of the Equality Act so was not a protected act.
The EAT dismissed Ms Chalmers’ appeal. The tribunal was entitled to interpret the email in accordance with its natural meaning and was not bound to find that it alleged that Ms Chalmers had been discriminated against because of her sex. It was relevant that the email only said that the behaviour “may” amount to discrimination and did not refer to sex discrimination. As Ms Chalmers was articulate and well educated, with some HR experience, she would have asserted sex discrimination if she had wanted to do so. The tribunal had opportunity to judge whether she was someone who was likely to have expressed herself cautiously and its conclusion about the email was not perverse.
Grouping error – conclusion that women did not suffer particular disadvantage unsound
For a claim of indirect discrimination to proceed, the employer must apply a provision, criterion or practice that puts a group sharing a protected characteristic at a particular disadvantage. However, issues often arise about which employees to include in the relevant group when assessing whether particular disadvantage arises. Cumming v British Airways plc is a reminder that tribunals should not take too wide an approach to this issue.
British Airways had a policy of removing one paid rest day from an employee’s monthly roster for every three days of unpaid parental leave the employee took. This was designed to avoid a situation in which employees could be off work for an entire month through a combination of parental leave and paid rest days. Ms Cumming argued that the policy amounted to indirect sex discrimination but the tribunal dismissed her claim. It found that because the same reduction applied to employees of either sex who had taken unpaid parental leave, the policy did not put women at a particular disadvantage so the indirect sex discrimination claim could not succeed.
As the EAT observed in upholding Ms Cummings appeal, the tribunal’s reasoning overlooked the argument that women still bear the bulk of childcare responsibilities and were therefore more likely to apply to take parental leave. The statistics indicated that 24.2% of all women in the crew had taken parental leave but only 11.9% of men. The issue would have to be remitted to a tribunal to decide whether the evidence demonstrated that the policy put women at a particular disadvantage. That had to be assessed by comparing the proportion of women with childcare responsibilities who had taken parental leave with the proportion of men in the same position who had done so. British Airways’ arguments that the policy did not give rise to disadvantage and that it was in any event justified would also need to be considered afresh.