British Airways Plc v Starmer

Factual and Procedural Background

This appeal arises from a decision of the Employment Tribunal at Watford following a six-day hearing in early 2005. The dispute concerns the refusal by the Defendant, Company A, to grant the Plaintiff's application to reduce her working hours from full-time to 50% part-time. The Defendant had a policy introduced later in 2004 requiring a minimum of 2000 flying hours to transfer to part-time work below 75% full-time equivalent, but this policy was not the subject of the Plaintiff's claim. Instead, the claim challenged the Defendant's earlier decision to allow only a 75% part-time contract rather than the requested 50%. The Employment Tribunal found that the Defendant unlawfully discriminated against the Plaintiff contrary to the Sex Discrimination Act 1975. The Defendant now appeals this finding.

Legal Issues Presented

1. Whether the condition imposed by the Defendant requiring the Plaintiff to work at least 75% of full-time hours to be permitted part-time work constituted a "provision, criterion or practice" (PCP) under the Sex Discrimination Act 1975.
2. Whether the PCP was prima facie discriminatory, having a disparate impact on a considerably larger proportion of women than men.
3. Whether the Defendant justified the PCP irrespective of sex, particularly on grounds of resource and safety considerations.
4. Whether the Employment Tribunal erred in its assessment of the statistical evidence and the application of legal principles regarding indirect discrimination.

Arguments of the Parties

Appellant's Arguments

• The Defendant contended there was no PCP applicable to the Plaintiff's case during the relevant period, arguing the decision to refuse 50% was a one-off discretionary management decision rather than a general provision.
• The Defendant challenged the statistical evidence used by the Tribunal to establish disparate impact, disputing its validity and relevance.
• On justification, the Defendant relied primarily on resource considerations, including additional costs, inability to reorganise work, and recruitment freezes, and also advanced retrospective safety considerations not originally relied upon at the time of refusal.
• The Defendant argued that the Tribunal failed to properly give weight to the safety evidence and the industry-recognised need for a minimum flying hours threshold.

Respondent's Arguments

• The Plaintiff submitted that the Defendant's refusal to grant 50% part-time working and imposition of a 75% minimum was a PCP under the Act and discriminatory in its effect.
• The Plaintiff relied on statistical evidence and broader societal context showing that a considerably larger proportion of women than men are detrimentally affected by the PCP because women more often seek part-time work for childcare reasons.
• The Plaintiff argued the Defendant failed to justify the PCP on any objective grounds, with the Tribunal correctly rejecting the resource and safety justifications.
• The Plaintiff also contended that one-off or discretionary decisions can constitute PCPs and that the Tribunal's approach was consistent with precedent.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kumchyk v Derby CC [1978] ICR 116	Jurisdictional principle that there must be a PCP for indirect discrimination claims.	Allowed the Court to consider a new argument on appeal regarding the existence of a PCP despite it not being raised below.
Allonby v Accrington College [2001] ICR 1189	Definition of "requirement or condition" (now PCP) is broad and not narrowly construed; one-off or discretionary decisions can constitute PCPs.	Supported the conclusion that the Defendant’s decision was a PCP, rejecting arguments that only general or repeated provisions qualify.
Watches of Switzerland Ltd v Savell [1983] IRLR 141	Employment tribunal may find PCP in subjective promotion procedures.	Provided precedent for accepting one-off or discretionary decisions as PCPs.
Briggs v North Eastern Education and Library Board [1990] IRLR 181	Requirement that a teacher hold badminton practice after school was an indirect discrimination PCP.	Supported the broad interpretation of PCPs and their potential impact on indirect discrimination claims.
British Telecommunications plc v Roberts [1996] ICR 625	Condition imposed on part-time work hours as a PCP in indirect discrimination.	Illustrated that differing work hours requirements may constitute PCPs subject to indirect discrimination analysis.
Secretary for State of Trade & Industry v Rutherford No 2 [2005] ICR 119	Statistical analysis is central to establishing disparate impact in indirect discrimination.	Guided the Court’s approach to assessing statistical evidence and the need for flexibility beyond pure numbers.
University of Manchester v Jones [1993] ICR 474	Formula for calculating disparate impact in indirect discrimination claims.	Used by the Tribunal to quantify the difference in proportions of men and women affected by the PCP.
R v Secretary of State for Employment ex parte Seymour-Smith and Perez (No 2) [2000] IRLR 263	Threshold for what constitutes a "considerably larger proportion" in indirect discrimination.	Referenced in comparison of statistical disparities to determine the significance of impact.
Sinclair Roche & Temperley v Heard [2004] IRLR 763	Limits on generalisations about childcare responsibilities in discrimination claims.	Distinguished the case facts from overly simplistic societal assumptions about childcare.
Barry v Midland Bank plc [1999] IRLR 582	Onus of proof in justification and the requirement of cogent evidence.	Referred to in assessing the Defendant’s burden to justify the PCP objectively.
Hardys & Hansons plc v Lax [2005] EWCA Civ 846	Appellate scrutiny of Employment Tribunal’s evaluation of justification.	Confirmed the standard of review and the Tribunal’s duty to critically evaluate justification evidence.
Gerster v Freistaat Bayern [1997] IRLR 699	Need for objective criteria in justification related to length of service and knowledge acquisition.	Referenced in weighing the Defendant’s justification concerning pilot experience and safety.
Nimz v Freie und Hansestadt Hamburg [1991] IRLR 222	Challenges to the objectivity of length of service as a criterion.	Considered in relation to the Defendant’s arguments about experience and safety thresholds.
Price v Civil Service Commission [1977] IRLR 291	Tribunal may rely on own knowledge and experience in discrimination cases.	Supported the Tribunal’s flexible approach to statistical and non-statistical evidence.
Clymo v Wandsworth London Borough Council [1989] IRLR 241	Similar principle on tribunals’ use of knowledge and experience.	Reinforced the Tribunal’s approach to evidence beyond statistics.
Perera v Civil Service Commission [1982] IRLR 147	Elaborate statistical evidence is not always necessary to prove indirect discrimination.	Justified the Tribunal’s reliance on a broad range of evidence in assessing disparate impact.

Court's Reasoning and Analysis

The Court began by clarifying the scope of the appeal, emphasizing that the 2000-hour threshold policy introduced after the Plaintiff's application was not at issue. The primary focus was on whether the Defendant’s refusal to allow the Plaintiff to reduce working hours to 50%, instead requiring 75%, constituted a PCP under the Sex Discrimination Act 1975.

The Court analyzed the concept of a PCP, referencing the broad statutory definition and relevant case law, concluding that the Defendant’s decision was indeed a PCP. It rejected the argument that a one-off or discretionary decision could not be a PCP, citing precedents that support a liberal interpretation encompassing such decisions.

Next, the Court examined the evidence of disparate impact. Although statistical evidence was imperfect and complicated by the nature of the PCP, the Tribunal was entitled to consider both statistics and broader societal and workplace context. It found that a considerably larger proportion of women than men were detrimentally affected by the PCP, consistent with established patterns of part-time work being more common among women, particularly for childcare reasons.

The Court then turned to justification, noting the Defendant bore the burden of proof. The Defendant relied on resource constraints, including costs of recruitment and training, inability to reorganise work, and a recruitment freeze, as well as retrospective safety concerns. The Tribunal critically evaluated these justifications, finding that while legitimate objectives existed, the Defendant failed to demonstrate that the PCP was reasonably necessary or objectively justified in light of the disparate impact.

Regarding safety, the Court acknowledged that although safety considerations are important, the Defendant had not considered safety at the time of the decision and failed to provide cogent evidence that working at 50% would be unsafe for the Plaintiff. The Tribunal’s objective test on safety justification was upheld, noting that the broader safety threshold policy was not under challenge in this case.

Overall, the Court found no perversity or error in the Tribunal’s approach or conclusions, endorsing its careful and critical analysis of the PCP, disparate impact, and justification.

Holding and Implications

The Court DISMISSED the Defendant’s appeal, affirming the Employment Tribunal’s finding that the Defendant unlawfully discriminated against the Plaintiff by imposing a PCP requiring her to work at least 75% of full-time hours to be permitted part-time work.

The direct effect of this decision is that the Defendant must reconsider part-time working requests without imposing such a PCP unless it can be objectively justified. The ruling does not affect the validity of the Defendant’s later 2000-hour threshold policy or establish new precedent beyond confirming that one-off or discretionary decisions can constitute PCPs and be subject to indirect discrimination analysis.