Employment Cases Update

Cumming v British Airways Plc UKEAT/0337/19/JOJ

Date published: 01/02/2021

Appeal and cross-appeal against the ET’s rejection of the Claimant’s claim of indirect sex discrimination. Appeal and cross-appeal allowed.

The Claimant, a female member of the Respondent's aircrew, claimed that the Respondent indirectly discriminated against her on the basis of her sex by applying to her a policy of removing one paid rest day from her monthly roster for every three (unpaid) days of "parental leave" taken. The ET found that the policy did not put women at a "particular disadvantage" when compared with men, and it therefore dismissed her claim without needing to consider whether the policy was a proportionate means of achieving a legitimate aim. The Claimant appealed against the finding on "particular disadvantage", asserting that women bore the bulk of childcare responsibilities and were therefore "more likely to apply to take parental leave"; and the Respondent cross-appealed on the basis that the ET was wrong to find that the policy involved any "disadvantage" at all.

The EAT held that the ET had erred in law in relation to its reasoning on "particular disadvantage" and it had failed properly to consider the case that the Claimant was putting; as to the cross-appeal, the EAT found that the ET had wrongly regarded it as self-evident that the application of the policy involved a "disadvantage", and that the Respondent's view was at least deserving of consideration. Accordingly, the matter would be remitted to a fresh ET to consider whether the Respondent's policy put anyone with childcare responsibilities at a "disadvantage", put women at a "particular disadvantage" when compared with men, and was a proportionate means of achieving a legitimate aim.

Read the full text of the judgment on BAILII or download the file by clicking the link below.