Retail Giant Sued By Department Manager For Sex Discrimination

Allen v Primark Stores Limited 

Case summary

Natasha Allen (Ms Allen), brought an Employment Tribunal claim against her employer, Primark Stores Limited (Primark), for sex discrimination as a result of Primark not letting her care for her daughter on Thursday evenings.

Ms Allen took maternity leave and requested flexible working arrangements on her return to work in November 2019 due to her having sole responsibility for her daughter and limited access to support. Primark’s policy stated that department managers should guarantee their availability to work late shifts and Ms Allen was worried that she would be placed at a disadvantage as a result of this.

Primark did accommodate some of Ms Allen’s requests but could not agree to her not working the late shift on a Thursday as she had requested. This was because only two of the six department managers at the store were able to work on Thursdays and the other three department managers either rarely or never worked the shift due to their own flexible working arrangements. Primark considered that two of the three colleagues had implied contractual entitlements to the arrangement and so there would be an inadequate cover for absences if they agreed that Ms Allen did not have to guarantee her availability on a Thursday evening.

Ms Allen brought a claim for indirect sex discrimination on the grounds that Primark applied a provision, criterion, or practice (PCP) that department managers were required to guarantee availability to work late shifts on a Thursday and that this put women (who are more likely to have caring responsibilities for children) at a disadvantage and therefore put Ms Allen at a disadvantage.

The Employment Tribunal rejected the claim on the basis that the pool for comparison that they created showed that two men and one woman were disadvantaged by the PCP and therefore women as a group was not at a particular disadvantage.

Ms Allen appealed to the Employment Appeal Tribunal.

Employment Appeal Tribunal judgment

The Employment Appeal Tribunal allowed Ms Allen’s appeal and held that the Employment Tribunal was wrong in their creation of the pool for comparison as the comparators were simply asked to work the late shifts on a Thursday but that Ms Allen was required to guarantee her availability to work those shifts. The Employment Appeal Tribunal, therefore, felt that there was a material difference between Ms Allen’s position and her comparators’ position due to the element of compulsion.

The Employment Tribunal’s decision was set aside and the case has been remitted for rehearing.