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A Primark manager is suing the retail giant for sex discrimination for not letting her have Thursday evenings off to care for her child – while male colleagues with children had only an ‘informal’ obligation to work on that day.
Natasha Allen, who worked at the Primark store in Bury from 2011, was asked to ‘guarantee her availability’ to work the late shift on Thursday because the store did not have enough senior staff to cover her absence.
Departmental manager Miss Allen, 29, gave birth to her daughter Brooke in 2019 and argued the insistence on working those evenings was unfair because she was the principal carer for the child.
The clothing chain rejected her request for flexible working, and Miss Allen resigned in September 2019 and took her case to an employment tribunal, arguing that ‘the requirement for department managers to guarantee availability to work late shifts… put women at a particular disadvantage compared to men’.
A panel ruled that Miss Allen, from Rochdale, Greater Manchester, had not been discriminated against because the firm’s insistence that managers work evening shifts applied to men too.
The tribunal focused on the Bury store, where there were five other department managers, two of whom had childcare issues. As they were both men the panel decided ‘women were not at a particular disadvantage’, and dismissed her claims.
But Miss Allen has now won the right for the case to be heard again after the President of the Employment Appeal Tribunal, Mrs Justice Eady, dismissed the findings, ruling that the male managers’ circumstances were different because their requirement to work Thursday evenings were ‘informal’ and not contractually obliged.
Natasha Allen, who worked at the Primark store in Bury from 2011, was asked to ‘guarantee her availability’ to work the late shift on Thursday because the store did not have enough senior staff to cover her absence (pictured: Primark in Bury)
Justice Eady added: ‘Even if there had been a contractual requirement on (them) to work the Thursday late shift… their circumstances were materially different to those of (Miss Allen) and they should have been excluded from the pool.
‘I do not say that the (original tribunal) was bound to adopt a broader, UK-wide, pool instead, but the error in the approach to its task means that there is no obvious logic to the pool that it did select.
‘This is, therefore, a case where the conclusions must be set aside in their entirety.’
She ordered the case of indirect sex discrimination and constructive unfair dismissal to be heard again.
The hearing was told Miss Allen had sole responsibility for looking after with only ‘limited support’ from her mother.
Because of this, she made an application for flexible working to change her contractual hours before returning from maternity leave.
Although Primark had been prepared to agree that her working hours would not include late shifts on other days, the hearing was told she would still be required to be available to work Thursdays from 10.30am to 8.30pm.
She was told: ‘Whilst on the majority of days your reasoning that there are other managers who could cover this late shift is true, on a Thursday we do not have sufficient flexibility in the management team to accommodate this request as only two of the six current managers are able to work this shift.’
This was insufficient to meet her concerns and, upon her appeal also being refused, in September 2019 Miss Allen resigned.
Miss Allen argued at the original tribunal in Manchester in October 2020 that ‘the requirement for department managers to guarantee availability to work late shifts… put women at a particular disadvantage compared to men’.
She added: ‘The particular disadvantage was the difficulty or practical impossibility of working evenings while having child care responsibilities.’
To decide whether this requirement to work evenings was discriminatory, the original tribunal compared Miss Allen to other managers ‘who potentially have to work the Thursday [late] shifts, however convenient or inconvenient to them it was’.
In her appeal, Miss Allen claimed the tribunal had made a mistake in comparing her to just those managers in the store where she worked as the requirement to be available to work late shifts applied to department managers across the UK.
The appeal heard there had been ‘no proper engagement with that aspect of the case’ and ‘no explanation of its decision to discount this wider pool (of comparators)’.
Source: DailyMail
