In Shackletons Garden Centre Ltd v Lowe EAT/0161/10, the EAT held that an employment tribunal had insufficient evidence for its finding that an employee returning from maternity leave suffered indirect sex discrimination when her employer required her to work weekend shifts on the same basis as the other sales staff.
The Employment Appeal Tribunal has held that an employment tribunal was not entitled to find, on the evidence, that an employer indirectly discriminated against a woman who was required to do weekend working when she returned from maternity leave.
A manager's disastrous mishandling of an application for flexible working, from an employee who had returned from maternity leave, meant that she resigned and successfully claimed constructive dismissal.
The employment tribunal in this case declared the Royal Navy promotion system to be in need of reform.
The employment tribunal found that an employer had failed to respond to the formal right to request flexible working by an employee who had returned from maternity leave and that she had been forced to resign because of the uncertain situation in which this left her.
In Wilson v Health and Safety Executive  EWCA Civ 1074 CA, the Court of Appeal agreed with the EAT that the ECJ decision in Cadman allows a tribunal to examine the practical application, as well as the adoption, of a length-of-service criterion in a pay scheme. However, the EAT had set the threshold for establishing the requisite "serious doubts" about the criterion too high. To challenge the particular use of such a criterion, "the employee only has to show that there is evidence from which, if established at trial, it can properly be found that the general rule" that such a criterion is appropriate "does not apply".
In Somerset Council and another v Pike  IRLR 870 CA, the Court of Appeal held that a pension scheme that excluded part-time work done by employees already in receipt of a pension was potentially discriminatory because it had a disproportionate impact on women. The Court of Appeal ruled that, in assessing whether or not there has been indirect discrimination, the relevant pool for comparison must exclude those who have no interest in the effect of the practice under challenge - in this case employees not yet in receipt of their pension.
The Court of Appeal has held that the GMB committed indirect sex discrimination in failing to pursue Middlesbrough Borough Council in connection with a long-running equal pay dispute.
HR and legal information and guidance relating to indirect sex discrimination.