Are women indirectly discriminated against by policies which penalise staff for taking parental leave?

One would have thought that the answer would be a resounding ‘yes’ although in the case of Cumming v British Airways (UKEAT/0337/19/JOJ) it is taking the courts some time to reach this conclusion.

The case is being brought by Ms Cumming, a British Airways crew worker, who has sought to challenge a BA policy under which airline crew who take three days unpaid parental leave automatically lose a day of paid leave.

Ms Cumming has argued that this policy is indirectly discriminatory towards women as a higher proportion of women will need to take parental leave. However her claim was initially rejected by Watford Employment Tribunal which found no evidence of gender disadvantage based on the old chestnut that the policy applies equally to all crew members irrespective of gender.

Ms Cumming appealed to the Employment Appeal Tribunal who found that decision involved an error of law. In order to consider the discriminatory impact of a policy it is necessary to consider those who are specifically affected by it. In this case this is airline crew, both male and female, who have children of a dependant age. If women within this group are disproportionately likely to take parental leave then it follows that they are disadvantaged as a group by the penalty which BA has applied.

The tribunal did not consider this question so the case has been remitted to the tribunal to consider this (and BA’s cross appeal that the policy did not involve any ‘disadvantage’ to male or female staff). We will keep an eye out for the final decision – watch this space!

This blog by Mark Alaszewski first appeared on Daniel Barnett’s Employment Law Bulletin