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Tribunal failed to take notice of childcare disparity

The Employment Appeal Tribunal has held that an employment tribunal failed to take notice of the “childcare disparity” in a recent indirect sex discrimination claim. The disparity is when female colleagues with childcare responsibilities are less likely to be able to conform with certain working practices compared with their male colleagues.

Whilst appreciating times have changed since some judicial decisions on childcare disparity were made, the assumptions previously made and relied upon were routed in the same evidence that was presented to the EAT.

That said, the childcare disparity will not automatically result a finding that any form of flexible working will put women at a particular disadvantage it will always depend on the particular provision, criterion or practice (PCP) in question. In this case, the relevant PCP involved flexible working at the employer’s discretion, including at weekends. Since this prevented the employee from have the freedom to decide when she could work within a certain timeframe, the link between the childcare disparity and the particular PCP in this case was strong enough to establish group disadvantage being made out.