What Is A Pool For Comparison In Discrimination Claims?

When experiencing discrimination at work, employees may be able to bring a claim to the Employment Tribunal (ET) under the Equality Act 2010 (EqA). This key piece of legislation makes suffering unfavourable treatment due to having a protected characteristic unlawful and all employees are protected by the EqA. 

Gender is a protected characteristic and the EqA protects against sex discrimination in the workplace. The EqA recognises several different forms of sex discrimination, including; 

• Direct discrimination
• Indirect discrimination
• Harassment
• Victimisation

Out of all of these forms of discrimination, indirect discrimination is often the most misunderstood and, in turn, frequently overlooked. Many do not realise that whilst they may be being treated the same as other employees, if the way they are treated has a worse effect on them because of a protected characteristic they may still be being discriminated against. 

Under Section 19 of the EqA, indirect discrimination is defined as; 

“(1)A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2)For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if—

(a)A applies, or would apply, it to persons with whom B does not share the characteristic,

(b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c)it puts, or would put, B at that disadvantage, and

(d)A cannot show it to be a proportionate means of achieving a legitimate aim.”

When taking a claim of indirect discrimination to the ET, a ‘pool of comparison’ will be used to determine whether an employee is put at a particular disadvantage when compared to someone who does not share the same protected characteristics. If you have never heard of a pool of comparison, below we have looked into this in more detail and explored how a pool of comparison can impact a sex discrimination claim. 

What is a pool for comparison?

Simply put, a pool for comparison is a group of other people who are also affected by a Provision, Criteria or Practice (PCP) that is in place. This pool of comparison is used to establish whether discrimination has taken place and it will include both people who are and are not put at a disadvantage by a PCP, however, Section 23 of the EqA states that; 

“(1)On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case.”

When creating a pool for comparison, an ET must correctly determine the PCP at the heart of an employee’s claim. This will help to ensure they are identifying the right pool for comparison and including the correct people within this pool. The importance of using an accurate pool of comparison should not be underestimated and ultimately, this pool will play a pivotal role in determining whether or not an act of discrimination has occurred. 

An example of a case including a pool for comparison 

In the case of Miss Natasha Allen v Primark Stores Ltd, the claimant brought an indirect sex discrimination claim and constructive unfair dismissal claim to the ET. 

The claimant worked as a department manager at the respondent’s store in Bury. She had taken a period of maternity leave and aimed to return to work in November 2019. Before she was due to return, the claimant made an application under the respondent’s flexible working policy for a change to her contractual hours. All of the respondent’s department managers were required under standard terms and conditions to guarantee availability to work late shifts. The claimant had sole responsibility for her child, with only limited support from her mother, and she was concerned about working late shifts upon her return to work. 

Whilst the respondent offered some accommodation regarding flexible working, the claimant was still required to be available to work the Thursday late shift. In September 2019, she resigned and decided to pursue claims of indirect sex discrimination and constructive unfair dismissal.

In her claims before the ET, the claimant stated that the requirement for department managers to guarantee availability to work late shifts amounted to a PCP. She argued that this PCP put women at a particular disadvantage compared to men as it was difficult or practically impossible to work evenings while having childcare responsibilities.

The respondent accepted that requiring department managers to work varying shifts, including late shifts, amounts to a PCP. However, it denied that this PCP placed women at a substantial disadvantage. It also argued that, in any event, such treatment was a proportionate means of achieving its legitimate aim of ensuring there was always an appropriate level of management cover throughout its store during operational and trading hours.

When identifying the pool for comparison, the ET concluded this would be comprised of the

department managers and trainee managers who potentially have to work the Thursday

late shifts and the ET focused on the respondent’s Bury store. In this store, there were four other department managers and a trainee manager, however, one department manager had their own flexible working arrangement in place so they were not included in the pool. 

The ET concluded that women were not at a disadvantage when compared to men in the pool. Therefore, there was no indirect sex discrimination. 

The claimant appealed this decision and said the ET erred in its identification of the correct pool for comparison. This appeal was upheld by the Employment Appeal Tribunal (EAT). The claimant argued that since the requirement to be available to work late shifts was within the respondent’s standard terms and conditions for department managers across the UK, the discriminatory impact of this PCP should have been considered across that wider pool.

Upon review of the case, the EAT found that the ET’s choice of pool was unsafe. The ET had wrongly failed to address the specific PCP the claimant was complaining about and included individuals within the pool who did not have the same compulsion to guarantee their availability for the late shifts as the claimant. Therefore, there was a material difference between the position of the claimant and others in the pool for comparison. 

Whilst the ET was not bound to adopt a broader UK-wide pool, there was no obvious logic to the pool that it did select. For this reason, this is a case where the ET’s conclusions must be set aside in their entirety. This matter will be remitted for re-hearing. 

Speaking to an employment law specialist about discrimination claims in London 

If you have any questions about indirect discrimination or you are looking for an employment law expert who can assist you with a discrimination claim in London, be sure to contact us at Nationwide Employment Lawyers. Our team of experienced and talented employment law specialists will be happy to assist you with your workplace discrimination issues, and we have an impressive record of representing our clients. We pride ourselves on providing an efficient and cost-effective service, and the same team will be by your side throughout all legal proceedings. To find out more about how we can assist you with discrimination claims in London, explore the rest of our website today.