Cumming v British Airways Plc provides an example of how to identify the correct pool for comparison in indirect discrimination cases. C was a female member of British Airways aircrew. BA had a policy that members of crew who took parental leave under the Maternity and Parental Leave etc Regulations 1999 would have one paid rest day removed for each three days’ parental leave taken in any monthly roster. She claimed that this policy involved indirect discrimination on grounds of sex because a higher proportion of women took parental leave than men and that the policy therefore put women at a “particular disadvantage”. It was common ground that the appropriate “pool” for comparison was all crew members (both male and female) who had childcare responsibilities, but the ET rejected the claim on the basis that all crew members (whether male or female) who took parental leave would lose the paid rest day(s). Wrong said the EAT. Not all crew members with childcare responsibilities would necessarily take parental leave and the proper comparison was between the impact of the policy on women with childcare responsibilities and the impact on men with childcare responsibilities.
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