Thread by @JasonBraier

1/ Allen v Primark: EAT emphasises the need to match the pool for an indirect discrimination claim to the precise PCP relied upon. Here the ET erred by constructing a pool including those to whom the PCP didn't apply.
assets.publishing.service.gov.uk/media/6256936d…
#ukemplaw

2/ A was a manager of a Primark Store. She was a single mother of a young child. P applied a PCP under which department managers at her store were required to guarantee availability to work late shifts on Thursdays. A brought a claim of indirect discrimination in respect of this.

3/ In constructing a pool for comparison for the s.19 claim, the ET pooled together department managers & trainee managers, as they potentially had to work late Thursday shifts. It was noted that 2 of the male dept managers had childcare issues on a Thursday night.

4/ However, the evidence before the ET was that those 2 male dept managers had an entrenched working pattern not to work late shifts on Thursdays - accordingly they had not been required to guarantee Thursday late shift working - the PCP didn't apply to them.

5/ The ET constructed the pool to include all those who wanted the benefit of not working late on Thursdays, discounting a narrower pool excluding the 2 for whom there was already an arrangement in place not to work on a Thursday late shift. This pool showed no disadvantage.

6/ The EAT noted the guidance in Essop & Naeem on constructing a pool of all those affected by the PCP in question, and from Dobson that identifying the PCP leads to a logical identification of the pool.

7/ The EAT found that here the ET hadn't identified a pool consistent with A's case, which concerned a PCP of being required to guarantee availability to work Thursday late shifts. Had they done so, the ET would have excluded those not required to give that guarantee.