P Macdonald v Computershare Technology Services (UK) Ltd: 8001730/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8001730/2025Venue EdinburghHearing 26, 27 & 28 January 2026
Between
P MacdonaldClaimantComputershare Technology Services (UK) LimitedRespondent
Before
Employment Judge J McCluskeyR Lawson (instructed by Solicitor) for claimantS Brewis (instructed by Counsel) for respondentDate 31 March 2026
JUDGMENT
[1]The complaint of direct associative disability discrimination (section 13 Equality Act 2010) is not well founded and is dismissed.[2]The complaint of indirect sex discrimination (section 19A Equality Act[3]The complaint of indirect disability discrimination (section 19A Equality Act
REASONS
[1]The claimant brings complaints of direct associative disability discrimination, indirect sex discrimination (section 19A Equality Act 2010) and indirect disability discrimination (section 19A Equality Act 2010). The complaints are resisted by the respondent.[2]The respondent accepts that at least one of the claimant’s twins is a disabled person by reason of autism and/or ADHD and was so at the time of the events the claim is about.(refusal on 10 March 2025 of a flexible working request).[3]The final hearing was listed to determine liability and remedy.[4]The claimant gave evidence. For the respondent, the Tribunal heard evidence from Mr Bryn Jones, Head of Technology Incident Management (the claimant’s line manager), Mr Andy Carpenter, Global Head of Application Management and Ms Katie Carroll, Senior Employee Relations Consultant.[5]There was a joint bundle of productions extending to 182 pages. At the start of the final hearing the claimant added a supplementary bundle of productions extending to 9 pages, which was mainly GP records. There was no objection by the respondent. The Tribunal only considered the documents to which it was taken during the evidence of witnesses, including the claimant.
Issues
[6]The parties had agreed a list of issues which is set out in the appendix to this judgment. Findings in fact[7]The claimant commenced employment with the respondent on 2 May 2022 as an IT Incident Manager. His employment is continuing.[8]The claimant’s contract of employment dated 5 April 2022 provides that his job location is in Edinburgh. He is contracted to work 37.5 hours per week. When the claimant accepted the job in April 2022 he knew that the requirement was for 50/50 hybrid home and office attendance. The claimant’s job description provides that he is expected to work collaboratively across teams.[9]When the claimant applied for his job with the respondent he lived just outside Glasgow. He still lives there. He does not drive. His commute to work by public transport is over 2 hours each way.[10]The respondent provides technology support to businesses around the world. The respondent’s clients include financial institutions. The claimant is an IT Incident Manager. His job involves responding to and managing high priority and time critical IT incidents.[11]Depending on the nature of the IT incident, the time scale for responding can be time critical, for example if the IT incident involves a financial institution client. The claimant’s job is reactive. He can be engaged for hours at time without a break when responding to a high priority incident.[12]On 18 May 2023 the respondent’s CEO sent an email to all staff about returning to the office. He referred to what other businesses were doing about a return to office working after the removal of covid restrictions. He referred to a need to stay competitive and keep collaboration high. He mandated office attendance from 1 September 2023 for a minimum of two days a week.[13]On 6 February 2024 the claimant made a flexible working request. He wrote “It is becoming increasingly difficult to commit to getting into the office even with the low expectation of in office time. This is a result of the care responsibilities of my twins”. The claimant wished to work from home on a permanent basis.[14]Ms Page, the claimant’s then line manager, met with the claimant on 11 March 2024 to discuss his request. On 19 March 2024 she confirmed her decision and reasons in writing. The claimant’s application was refused. She wrote “I am unable to accommodate your flexible working request on the following business grounds: This was a newly created role with clear expectations that this would be office based with at least 50% of the time working in Edinburgh House. Some of the key factors of the role and working in the office is ensuring we are developing and demonstrating the purple culture and contributing to building and maintaining a collaborative and innovative working environment. We have already compromised on the current required hours for the GIM team to attend the office, which is below the CPU minimum requirement. We explained that we would continue to work with you to be flexible wherever possible whilst ensuring we are meeting the needs of the business”.[15]The reference to having already compromised the current required hours to attend the office referred to a local arrangement in place with the Incident Managers based in Edinburgh. When the claimant and others in his team were scheduled to work on the early shift it started at 06.00. It was not possible for staff to get to the office by public transport to start at 06.00. When working the early shift, it was permitted to work from home. The number of in office days required to be worked for the claimant and others in his team was therefore reduced to accommodate this local arrangement.[16]On 24 May 2024 the respondent’s CEO sent a further email to all staff headed return to the offices – update on our approach. He referred again to the need to stay competitive and keep collaboration high. From 1 September 2024 office attendance was updated to three days a week.[17]On 6 February 2025 the claimant submitted a second flexible working application. He sought to work from home on a permanent basis. Due to the local arrangement in place which permitted home working when on the early shift, the requirement to attend the office for the claimant and the other Incident Managers in Edinburgh at the time of his application was 9 days per month.[18]At the time of his application, the claimant still lived just outside Glasgow, with a commute of over 2 hours each way and did not drive.[19]In his flexible working application the claimant included the following: “Due to my caregiving responsibilities for my twins, who are neurodiverse (autistic & ADHD), it has become increasingly challenging to meeting the current expectations for in-office time”. He wrote “When I am in the office, I am unable to assist my wife with the school run, which I usually do during my allocated break time. Furthermore, I am concerned about the difficulty of returning home promptly in case of emergencies or issues requiring medical attention or last-minute appointments for the boys. The travel time and irregularity of direct trains to my home station exacerbate this issue. I would like to formally request a flexible working arrangement to be home based and have provided an abundance of documented evidence detailing the challenges and caregiving responsibilities to support this discussion. The above being said I am not stating that I will not attend the office, I am still happy to make attempt to attend on my core shifts however more so on a best endeavours basis”.[20]At the time of his application the claimant and the other IT Incident Managers worked on a rotating shift pattern:a. Core Shift 08:00 – 16:00b. Core Shift 10:00 – 18:00c. Back Shift 14:00 – 22:00.[21]Each shift was 8 hours with a 30 minute unpaid break. The break was not to be taken at the beginning or end of the shift.[22]The respondent’s arrangements for office working allowed employees, including the claimant, to choose which nine days in the month they wished to attend the office.[23]The claimant’s wife drove their twins to school. She required to leave the house around 08.00 and returned home around 08.40, a round trip of about 40 minutes. She left home again around 14.30 to pick the twins up and returned home around 15.10, again a round trip of about 40 minutes.[24]If the claimant worked from home permanently, he would be unable to accompany his wife on any of the school runs during his break times as he proposed. This is because the school run took around 40 minutes which was longer than the claimant’s allocated break. Additionally, breaks could not be taken at the beginning or end of a shift.[25]If the claimant worked from home permanently, he would be unable to assist his wife with issues requiring medical attention or last-minute medical appointments outside of the home, during his working time. This is because his job involves responding to and managing high priority and time critical incidents, He could not simply stop working to do other things, without permission to do so.[26]There were a few occasions when the claimant had been given permission to leave the office early to assist his wife with issues requiring medical attention or last-minute medical appointments for the twins. This was not a regular occurrence. The respondent had been flexible about allowing the claimant to leave early on those occasions.[27]On 5 March 2025 a meeting took place with Mr Bryn Jones, Head of Technology Incident Management to discuss the claimant’s flexible working request. Mr Jones was the claimant’s line manager. Katie Carroll, Senior Employee Relations Consultant was also in attendance.[28]In the meeting Mr Jones discussed the claimant’s flexible working application with him. The claimant confirmed his wife was the designated carer for the twins and that she did not work.[29]The claimant provided documentation with his flexible working application about his twins' health conditions and arrangements to transport them to and from school. Mr Jones discussed this with him. The claimant said that if he was at home he could be in the car with his wife on the school run in his break times. His wife was always the driver as he did not drive.[30]It was not correct that the claimant could use his break times as the school run was longer than the claimant’s break time and break times could not be taken at the beginning or end of a shift.[31]In the meeting the claimant said that permanent home working would mean he could intervene for a short period of about 5 minutes, during a coffee or comfort break from work, if there were behavioural issues with the twins due to their neurodiversity.[32]In the meeting the claimant said that the commute between the office and his home was over 2 hours. Permanent home working would mean he was always at home after his shifts. In the meeting the claimant said “the biggest factor is if they [the twins] have rough day when they leave school from 3pm until 8.10pm my partner has to deal with the kids as a carer, if I don’t get home until 8.10 that’s a long time...”.[33]In the meeting, Mr Jones asked the claimant if he thought there would be any impact on the business or the team or his colleagues if he worked from home permanently. The claimant said he did not see any impact as engagement on an IT incident comes via Microsoft Teams and is done virtually.[34]The claimant’s team worked with other teams in the Edinburgh office, in particular the Service Desk, the SOC team and the NOC team. They worked together to resolve major incidents. These teams were on the 5th floor in the office with the claimant's team. The teams had recently been restructured to enable closer working across teams. The office floor space had recently been reconfigured and new technology installed, including screens which showed information about incidents which could be viewed by all teams on that floor. This was described by the respondent as being like a NASA control centre. There had been financial investment by the respondent in reconfiguring the floor space and in new technology in the office.[35]On 10 March 2025 Mr Jones wrote to the claimant. The claimant’s application for flexible working, to work from home on a permanent basis, was refused.[36]The decision letter from Mr Jones included the following: “I regret to inform you that I am unable to accommodate your flexible working request on the following business grounds: - Planned structural changes Detrimental impact on performance - Detrimental impact on quality. The grounds apply in these circumstances because we are restructuring the teams in the department to enable closer working on the 5th floor in Edinburgh House. The changes made will enable closer working across Incident Management, Service Desk, NOC and SOC teams to provide a quicker and more thorough response to Major Incident escalations. The investment in building work on the floor and enhanced technology solutions, as well as working alongside the teams in the office will improve the ability to identify, validate, respond and recover from Major Incidents that impact the business and clients. By working collaboratively in the office across the teams, I expect this will increase performance and quality of Incident and Problem Management execution and reduce MTTR and reduce the occurrence of future Major Incidents. As you are aware we have already altered the current required hours for your team to attend the office, which is less than the CPU minimum of 3 days per week in the office. I will continue to be as accommodating as I can be as I appreciate your circumstances, whilst still meeting the requirements of the business. We discussed alternative options, and you did not know of any other options that could be explored that would help your situation”.[37]When reaching his decision to refuse the application Mr Jones had regard to the emails from the CEO in 2023 and 2024 and the flexible working policy. It provided that applications for flexible working could only be rejected on one or more business grounds. Mr Jones personally held the view that working in the office some of the time was helpful to collaboration across the teams working on the 5th floor of Edinburgh House.[38]The claimant appealed the decision.[39]An appeal hearing took place on 28 March 2025 with Andy Carpenter, Global Head of Application Management. In the appeal hearing the claimant suggested attendance twice per month, with only one attendance on a core shift. On 11 April 2025 Mr Carpenter wrote to the claimant with his decision to uphold the decision of Mr Jones.[40]On 8 August 2025 the claimant received a first written warning for breach of the office attendance mandate. The claimant had not attended the office for the required 9 days per month.[41]On 17 November 2025 Mr Jones wrote to the claimant with the outcome of an investigation meeting on 11 November 2025. Mr Jones wrote “We discussed a concern that you have not attended the office in line with the CPU mandate during October, and you explained the reasons behind this was due to jetlag coming back from a holiday in America, some childcare issues with your partner starting a new job, some unexpected financial problems putting you on the breadline and ongoing challenges with mental health.... After reviewing all the information available to me and following our discussion I have decided on this occasion, that no action be taken under the Company’s Disciplinary Policy”.[42]On 7 March 2025 another employee based in Edinburgh House made a flexible working application, to work permanently from home. They did not carry out the role of Incident Manager. The application was for health reasons. The respondent held a meeting with the individual to discuss their application. On 4 April 2025 the respondent refused the application. The reasons given for the refusal were detrimental effect on ability to meet customer demands and detrimental impact on quality. The letter said there was a need to collaborate in the office.[43]The respondent allowed a developer to work permanently from home in Canada. It was not known whether they made a flexible working application. The individual did not carry out the same role as the claimant. They were based in Bristol. They relocated to Canada and were going to be living around 3 hours away from the nearest office. The respondent in the United States made the decision that this employee could work from home. Observations on the evidence[44]This judgment does not seek to address every point upon which the parties gave evidence. It only deals with the points which are relevant to the issues the Tribunal must consider, to decide if the claim succeeds or fails. If a particular point is not mentioned, it does not mean that the Tribunal has overlooked it. It is not included simply because it is not relevant to the question of whether the claim succeeds or fails. Any references to page numbers are to the paginated bundle of productions.[45]The standard of proof is on a balance of probabilities. This means that if the Tribunal considers that, on the evidence, an event's occurrence was more likely than not, then the Tribunal is satisfied that it occurred. Likewise, if the Tribunal considers that, on the evidence, an event's occurrence was more likely not to have occurred, then the Tribunal is satisfied that it did not occur.
Relevant law
[46]Section 13 EqA provides: “Direct Discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, (A) treats (B) less favourably than (A) treats or would treat others”.[47]Section 23(1) EqA provides that on a comparison for the purpose of establishing direct discrimination there must be ‘no material difference between the circumstances relating to each case’. The comparator required for the purpose of this statutory definition must be a comparator in the same position in all material respects as the claimant save only that he, or she, is not a member of the protected class (Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 ICR 337, HL).[48]The circumstances of the claimant and the comparator need not be identical in every way. What matters is that the circumstances which are relevant to the claimant’s treatment are the same or nearly the same for the claimant and the comparator — para 3.23 EHRC Employment Code.[49]Section 19A EqA provides: “19A. Indirect discrimination: same disadvantage(1) A person (A) discriminates against another (B) if— (a) A applies to B a provision, criterion or practice, (b) A also applies, or would apply, the provision, criterion or practice to— (i) persons who share a relevant protected characteristic, and (ii) persons who do not share that relevant protected characteristic, (c) B does not share that relevant protected characteristic, (d) the provision, criterion or practice puts, or would put, persons with the relevant protected characteristic at a particular disadvantage when compared with persons who do not share the relevant protected characteristic, (e) the provision, criterion or practice puts, or would put, B at substantively the same disadvantage as persons who do share the relevant protected characteristic, and (f) A cannot show that the provision, criterion or practice is a proportionate means of achieving a legitimate aim.(2) The relevant protected characteristics for the purposes of this section are— age; disability; gender reassignment; marriage and civil partnership; race; religion or belief; sex; sexual orientation”.[50]Section 23 EqA provides: “Comparison by reference to circumstances(1) On a comparison of cases for the purposes of section 13, 14, 19 or 19A there must be no material difference between the circumstances relating to each case.(2) The circumstances relating to a case include a person's abilities if— (a) on a comparison for the purposes of section 13, the protected characteristic is disability; (b).....(3) ..... (4).....”.[51]Direct discrimination is aimed at inequality of treatment. Indirect discrimination is equality of treatment which has inequality of results (Essop v Home Office [2017] UKSC 27).[52]There is no requirement in the Equality Act 2010 that the claimant show why the PCP puts one group sharing a particular protected characteristic at a particular disadvantage when compared with others. It is enough that it does (Essop).[53]Direct discrimination expressly requires a causal link between the less favourable treatment and the protected characteristic. Indirect discrimination does not. Instead it requires a causal link between the PCP and the particular disadvantage suffered by the group and the individual (Essop).[54]The language of the protection requires correspondence between the disadvantage suffered by the group and the disadvantage suffered by the individual. it would always be possible to show that a particular complainant was not put at a disadvantage by the requirement in issue, because there was no causal link between the PCP and the disadvantage suffered by the individual or that the application of the PCP was justified (Essop).[55]Section 136 EqA states: “Burden of proof(1) ….(2) If there are facts from which the tribunal could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned the tribunal must hold that the contravention occurred.(3) But this provision does not apply if A shows that A did not contravene the provision.”[56]The burden of proving the facts referred to in section 136(2) EqA lies with the claimant. If this subsection is satisfied, then the burden shifts to the respondent to satisfy subsection 136(3) EqA.[57]This is described in case law as a two-stage process. The claimant must first establish a first base or prima facie case by reference to the facts made out. If she does so, the burden of proof shifts to the respondent at the second stage. If the second stage is reached and the respondent’s explanation is inadequate, it is necessary for the Tribunal to conclude that the claimant’s allegation is to be upheld. If the explanation is adequate, that conclusion is not reached (Igen v Wong [2005] IRLR 258; Madarassy v Nomura International Plc [2007] IRLR 246).[58]For there to be less favourable treatment, the claimant must be subjected to some form of detriment. The question of whether there is a detriment requires the Tribunal to determine whether by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 HL).[59]A claimant can rely on an actual or hypothetical comparator for the purposes of establishing less favourable treatment. There must be no material difference in the circumstances of the claimant and comparator (section 23 EqA). In deciding how a hypothetical comparator would have been treated, the Tribunal is entitled to have regard to the treatment of real individuals (Chief Constable of West Yorkshire Police v Vento [2001 IRLR 124).[60]A difference in treatment and a difference in protected characteristic is not enough to establish that the difference in treatment was caused by the difference in protected characteristic; something more is required (Madarassy v Nomura International [2007] IRLR 246). The Tribunal needs evidence from which it could draw an inference that the protected characteristic was the reason for the difference in treatment.[61]Tribunals are entitled to draw an inference of discrimination from the facts of the case. The position is set out by the Court of Appeal in Igen v Wong [2005] ICR 931 (as approved by the Supreme Court in Hewage v Grampian Health Board [2012] IRLR 870). Submissions[62]The Tribunal carefully considered the submissions of both parties during its deliberations. The Tribunal has dealt with the points made in submissions, where relevant, when setting out the facts, the law and the application of the law to those facts in reaching its decision. It should not be taken that a submission was not considered because it is not part of the discussion and decision recorded. Discussion and decision Direct associative disability discrimination[63]The single act relied upon by the claimant is the decision made on 10 March 2025 by Mr Jones to refuse the claimant’s application for flexible working, to enable him to work from home on a permanent basis.[64]The claimant relied on a hypothetical comparator who was in the same job as the claimant and who submitted a flexible working request which sought permanent working from home, but who did not have disabled children.[65]The claimant submitted that where the reason for the less favourable treatment is not immediately apparent it is necessary to explore the mental processes, conscious or subconscious of the alleged discriminator to discover what facts operated on his or her mind (R v Governing Body of JFS & ors 2010 IRLR 136 SC). The claimant submitted that it was necessary for the Tribunal to carry out that exercise in this case.[66]The claimant’s submission is that at the meeting on 5 March 2025 there was a great deal of focus and discussion by Mr Jones about the claimant’s disabled twins. The claimant asserts that this line of questioning would not have been directed towards a hypothetical comparator.[67]The reason for the claimant’s flexible working application as set out in his letter of 6 February 2025 was due to what the claimant said were his caregiving responsibilities for his disabled twins. He set out in detail in his application the health and care needs of his twins. He provided documents with his application about their health conditions and arrangements to transport them to and from school. Accordingly, the Tribunal concluded that it was not surprising that Mr Jones discussed these matters in some detail with the claimant. These matters would not have been discussed with a hypothetical comparator who did not have disabled twins. That is because care of disabled twins would not have been the reason for their application and there would not have been any documentation about disabled children.[68]The claimant asked the Tribunal to draw an inference from the circumstances of another employee who had moved to Canada. It was not suggested that he was a real comparator. The evidence led about this employee was limited. Mr Jones did not know them. The claimant had only heard of them as they had been referred to in an application for permanent home working by another colleague. Ms Carroll knew only that this employee had a different role to the claimant and that their working arrangements in Canada had been dealt with by the respondent’s business in North America. The only evidence about this employee was that they had moved from Bristol to Canada and now worked at home. There was no evidence about whether the employee had made a flexible working application or what if any protected characteristics they had.[69]Even if it were the case that this employee had a different protected characteristic from the claimant or none, “something more” is required (Madarassy v Nomura International [2007] IRLR 246). The Tribunal needs evidence from which it could draw an inference that the protected characteristic of associative disability was the reason for the difference in treatment of the claimant. There was insufficient evidence about the circumstances of this other employee to allow the Tribunal to do so.[70]The burden of proving the facts referred to in section 136(2) EqA lies with the claimant. If this subsection is satisfied, then the burden shifts to the respondent to satisfy subsection 136(3) EqA.[71]This is described in case law as a two-stage process. The claimant must first establish a first base or prima facie case by reference to the facts made out. If he does so, the burden of proof shifts to the respondent at the second stage. If the second stage is reached and the respondent’s explanation is inadequate, it is necessary for the Tribunal to conclude that the claimant’s allegation is to be upheld. If the explanation is adequate, that conclusion is not reached (Igen v Wong [2005] IRLR 258; Madarassy v Nomura International Plc [2007] IRLR 246).[72]The Tribunal concluded for the reasons already given that the claimant had not established a first base or prima facie case by reference to the facts made out in relation to a hypothetical comparator, or when stepping back and looking at the whole picture. When looking at the whole picture, the respondent had also refused an application by another employee to work permanently from home. The Tribunal was satisfied that the burden of proof did not shift and put the onus on the respondent to prove that there was a non-discriminatory reason for its actions.[73]If however the Tribunal is wrong on that and the burden of proof has shifted, the Tribunal also considered Mr Jones’ explanation for the decision he reached on 10 March 2025.[74]Mr Jones’ evidence which the Tribunal accepted was that when reaching his decision to refuse the application he had regard to the emails from the CEO in 2023 and 2024 about the requirement to work in the office for a certain number of days and the flexible working policy which provided that applications for flexible working could only be rejected on one or more business grounds. Both the in-office working arrangements from the CEO and the business grounds were set out in Mr Jones’ outcome letter of 10 March 2025. The Tribunal was satisfied that Mr Jones’ decision was because of these reasons. Mr Jones also gave evidence, which the Tribunal accepted, that he personally held the view that working in the office some of the time was helpful to collaboration across the teams for the reasons given in his outcome letter.[75]The Tribunal was satisfied that Mr Jones did not refuse the claimant’s application for permanent home working because of the claimant’s protected characteristic of association with his disabled twins. Rather he refused the application for permanent home working because he was following the mandated requirements of the respondent organisation as set out in the communications from the CEO, because steps had been taken by the respondent to integrate working on the 5th floor of Edinburgh House and because he personally held the view that working in the office some of the time was helpful to collaboration across those teams.[76]The claimant submitted that the claimant’s protected characteristic of associative disability need not be the only reason for the decision to refuse the application to work at home permanently. It is sufficient that it had significant influence (Gould v St John’s Downshire Hill 2021 ICR 1, EAT). The Tribunal was satisfied that the claimant’s protected characteristic of associative disability did not influence Mr Jones’ decision and accordingly did not have a significant influence.[77]The direct associative disability discrimination complaint is not well founded and is dismissed. Indirect discrimination; same disadvantage (section 19A EqA)[78]Section 19A of the EqA 2010 was introduced by the Equality Act 2010 (Amendment) Regulations 2023. The purpose of adding section 19 A EqA as of 1 January 2024 was explained in the Explanatory Notes to the regulations as follows: 'Regulation 3 adds section 19A to the Equality Act 2010 to reproduce the principle established in CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia (Case C-83/14) that a person without a relevant protected characteristic is indirectly discriminated against where they suffer alongside persons with a relevant protected characteristic from a particular disadvantage arising from a discriminatory provision, criterion or practice.’[79]In CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia C-83/14, [2015] IRLR 746 the ECJ said that the principle of equal treatment in the Directive is intended to benefit also persons who, although not themselves a member of the race or ethnic group concerned, nevertheless suffer less favourable treatment or a particular disadvantage on one of those grounds.[80]Harvey on Industrial Relations and Employment Law narrates that there are two possible, very different, categories of case which might be termed 'associative indirect discrimination'. First, there is what one might call 'friends and family' cases where a PCP puts at a disadvantage those who associate with a person or persons having a particular protected characteristic and the claimant is one of those who so associate. The second category might be called same disadvantage cases and is where a PCP puts those with a particular protected characteristic at a disadvantage and the claimant, who does not have that characteristic, is also put at a disadvantage by that PCP. CHEZ was a same disadvantage case. (Harvey on Industrial Relations and Employment Law – Indirect discrimination (f) ‘Same disadvantage cases and associative indirect discrimination – para 33.02 Indirect sex discrimination; same disadvantage (section 19A EqA)[81]The parties agreed that the PCP applied by the respondent at the time of the asserted discriminatory treatment on 10 March 2025 was a requirement to physically attend the office on 9 days per month. The respondent accepts that it applied the PCP to the claimant.[82]The respondent accepts that it did apply or would apply the PCP to women, being persons who share a relevant protected characteristic – section 19A(b)(i) and to men, being persons who do not share that relevant protected characteristic – section 19A(b)(ii).[83]The claimant is a man. He does not share the relevant protected characteristic of being a woman. Group disadvantage – indirect sex discrimination section 19A[84]The claimant’s representative submitted that the particular disadvantage to which women are put by the PCP is “the difficulty of adhering to the requirement to be physically present at the respondent’s place of business for a certain number of days per week/month and the consequential problems that causes such as being at the risk of dismissal” (submissions para 34). The difficulty of adhering to the requirement is said to arise because women are more likely to have caring obligations than men.[85]There was no evidence led by the claimant about the group disadvantage to which he said women were put by the PCP.[86]The claimant’s representative submitted that judicial notice can be taken of the group disadvantage relied upon. Namely that women bear the greater burden of childcare and that as a result women generally have more difficulty in attending the office for a certain number of days per week/month and the consequential problems that causes to women such as being at the risk of dismissal.[87]In Dobson v North Cumbria Integrated Care NHS Foundation Trust 2021 ICR 1699, the EAT reviewed the authorities on judicial notice and identified a number of principles as follows:a. There are two broad categories of matters of which judicial notice may be taken:(i) facts that are so notorious or so well established to the knowledge of the court that they may be accepted without further enquiry; and(ii) other matters that may be noticed after inquiry, such as after referring to works of reference or other reliable and acceptable sources.b. The Court must take judicial notice of matters directed by statute and of matters that have been “so noticed by the well-established practice or precedents of the courts”;c. However, beyond that, the Court has a discretion and may or may not take judicial notice of a relevant matter and may require it to be proved in evidence;d. The party seeking judicial notice of a fact has the burden of convincing a judge that the matter is one capable of being accepted without further inquiry.[88]The Tribunal readily accepted that it could take judicial notice of the childcare disparity, namely that women bear the greater burden of childcare obligations than men.[89]The childcare disparity as between men and women does not inevitably mean that group disadvantage will be established in cases where the PCP concerns working hours or practices (Marston (Holdings) Ltd v Perkins 2025 EAT 20).[90]The Tribunal asked itself whether the group disadvantage relied upon was a fact so notorious or so well established to the knowledge of the Tribunal that it may be accepted without further enquiry – the first category identified in Dobson. Alternatively, was it a matter that may be noticed after inquiry such as after referring to works of reference or other reliable and acceptable sources. – the second category identified in Dobson.[91]The claimant’s representative submitted that the group disadvantage was made out as the case authorities demonstrate that there is judicial knowledge of the disadvantage applicable to females. Reference was made to IDS Handbook Volume 5, Chapter 16 at paragraphs 16.139- 16.140. These paragraphs refer to various cases including Dobson and Marston.[92]The respondent’s representative submitted that the PCP did not give rise to a group disadvantage due to the flexibility of the PCP which allowed everyone, including women, to choose the days when they came into the office. She submitted that the present case was not one where the childcare disparity as between men and women inevitably meant that a group disadvantage will be established or that the Tribunal could take judicial notice of the group disadvantage relied upon, in the absence of evidence having been led.[93]The childcare disparity as between men and women does not inevitably mean that group disadvantage will be established in cases where the PCP concerns working hours or practices (Marston). The Tribunal considered whether there was a group disadvantage to women if they were required to attend the office on a certain number of days, in circumstances where they could freely choose those days. In the absence of evidence or submissions from the claimant as to why women with childcare obligations may be unable to meet this requirement where they did have flexibility in choosing the days they worked in the office, the Tribunal considered how far judicial notice extended. The Tribunal considered whether the PCP would clearly give rise to difficulties for women.[94]With some hesitation, it concluded that it could. The Tribunal considered a scenario where, due to unexpected child sickness, women with childcare obligations could not attend the office on the requisite number of days per week/month. For example, they may have planned to attend the office on certain days but not be able to attend on those days due to unexpected child sickness, where they are the primary caregiver and need to stay at home. Depending on when in the week or month the unexpected child sickness occurred, they may not be able to make up the days of attendance in the office before the end of the week or month in question. They would then be at risk of some sanction including dismissal for not attending the office. If there was no risk of some sanction the office attendance policy would have no teeth.[95]Whilst there is flexibility in the office attendance arrangement, as highlighted by the respondent, the Tribunal concluded that it could take judicial notice of the vagaries of unexpected child sickness which may make it difficult for women with primary childcare obligations to attend the office for a requisite number of days per month.[96]Accordingly, the Tribunal concluded that it could take judicial notice of the group disadvantage relied on that women generally have more difficulty in attending the office for a certain number of days per week/month due to primary childcare obligations and the consequential problems that causes such as being at risk of dismissal.[97]The claimant’s representative submitted that being a primary carer is of no relevance to group disadvantage. The Tribunal did not agree. The group disadvantage is about being the primary carer such that the obligation falls on them (women) to look after the children Individual disadvantage – indirect sex discrimination section 19A EqA[98]The Tribunal next considered the disadvantage to which the claimant says he was put by the PCP.[99]The claimant’s representative submitted that the disadvantage to which the claimant was put by the PCP is that he has more difficulty in attending the office to work 9 days per month due to his childcare obligations which puts him at risk of dismissal.[100]The claimant’s representative submitted that the PCP puts the claimant at precisely the same disadvantage as the group disadvantage. He has more difficulty in attending the office to work 9 days per month, due to his childcare obligations.[101]The claimant identified two matters in his application dated 6 February 2025 to work permanently from home. The first was assistance with the school run which he said he did in his break time. The second was returning home promptly from the office in case of emergencies or issues requiring medical attention or last-minute appointments for the twins. The second issue arose because he had a commute time from the office of over two hours each way.[102]At the meeting on 5 March 2025 the claimant referred to an additional matter. He said that permanent home working would allow him to assist his wife for 5 minutes or so during a coffee or comfort break during the working day. This was by intervening in any behaviour issues with the twins due to their neurodiversity.[103]The Tribunal considered these in turn.[104]If the claimant had been permitted to work from home on a permanent basis, he would not have been able to assist his wife by accompanying her on the school run on his break time as the school run took longer than the claimant’s contractual break time of 30 minutes and break times could not be taken at the beginning or end of a shift.[105]If the claimant had been permitted to work from home on a permanent basis, he would not have been able to assist his wife by accompanying her in the event of emergencies or issues requiring medical attention or lastminute appointments for his children, during his contractual working hours. Given the nature of the claimant's work which involved responding to high impact incidents he needed to be available to manage time critical incidents during his contracted hours.[106]The Tribunal also concluded that in both scenarios it was the claimant’s wife who had the childcare obligations not the claimant. In both scenarios she was the primary carer for the children. She was the one responsible for the care of the children.[107]If the claimant had been permitted to work from home on a permanent basis, he may have been able to assist his wife for 5 minutes during his coffee or comfort break. This would depend if he was working on a high priority or time critical incident. The claimant’s wife was also at home. The Tribunal was not satisfied that intervening for a few minutes, when he could, amounted to childcare obligations. The Tribunal also concluded that it was the claimant’s wife who had the childcare obligations, not the claimant. She was the one responsible for the care of the children.[108]The Tribunal did not hear any evidence about any childcare obligations which the claimant had as the primary caregiver if he did not have the commute home.[109]In the minutes of the meeting on 5 March 2025 to which the Tribunal was taken, the claimant said “the biggest factor is if they [the twins] have rough day when they leave school from 3pm until 8.10pm my partner has to deal with the kids as a carer, if I don’t get home until 8.10 that’s a long time...”. The Tribunal was unable to conclude from this brief statement that the claimant had childcare obligations as the primary caregiver during what would have been his commute home.[110]In the claimant’s flexible working application, he referred to the commute time and a concern about the difficulty of returning home promptly in case of emergencies or issues requiring medical attention or last-minute appointments for the twins. There were only a few occasions when the claimant had asked to leave the office early and this had been allowed. The difficulty for the Tribunal was that there was no evidence about the claimant’s childcare obligations as the primary care giver in this scenario. For example, he could not drive to take the twins to any medical appointments. The Tribunal concluded that the childcare obligations as the primary caregiver remained those of his wife.[111]Accordingly, the Tribunal concluded that the PCP did not put the claimant at substantively the same disadvantage as the group disadvantage to women.[112]Having found that the PCP did not put the claimant at substantively the same disadvantage as the group disadvantage to women there is no requirement to determine objective justification.[113]The complaint of indirect sex discrimination (section 19A Equality Act Indirect disability discrimination; same disadvantage (section 19A EqA)[114]The claimant relies on the same PCP namely a requirement to attend the office on 9 days per month. The respondent accepts that it applied or would apply the PCP to employees who are disabled (subject to any adjustments having been made) and to employees who are not disabled.[115]The claimant is not disabled. He does not share the relevant protected characteristic of being disabled. The claimant relies upon three groups of disabled employees namely: employees who are confined to wheelchairs due to paraplegia or tetraplegia; employees who suffer from total blindness; and employees who suffer the same disability as the claimant’s two children (understood to be ADHD and/or autism). Group disadvantage – indirect disability discrimination section 19A EqA[116]The group disadvantage relied upon is the same as that for the section 19A EqA indirect sex discrimination complaint. Namely that these groups of disabled employees will have difficulty adhering to a requirement to be physically present in the respondent’s place of business for a certain number of days per week/month and the consequential problems that causes such as being at risk of dismissal.[117]The onus of proof is on the claimant. Comparative group disadvantage may be established by quantitative and/or qualitative means e.g. by statistical evidence, personal testimony, expert evidence or judicial knowledge (Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15).[118]The claimant submitted that these groups of disabled employees will “self evidently” have difficulty attending work for a certain number of days in a week/month and the consequential problems that causes such as being at risk of dismissal. The claimant submitted that these are matters of judicial knowledge.[119]There was no statistical evidence or expert evidence led by the claimant about the particular disadvantage to which he said these different groups of disabled employees were put by the PCP. The Tribunal was not directed to any works of reference or other sources from which it was asked to take judicial notice of the group disadvantage relied upon.[120]The Tribunal asked itself whether the group disadvantage relied upon was one where the facts were so notorious or so well established to the knowledge of the court that they may be accepted without further enquiry. The Tribunal also reminded itself that it must take judicial notice of matters directed by statute and of matters that have been so noticed by the wellestablished practice or precedents of the courts. The Tribunal was not directed by the claimant to any such well-established practice or precedent.[121]The Tribunal was not satisfied that it could take judicial notice of the group disadvantage relied upon. The difficulty which the Tribunal had is that there was no evidence or submissions from the claimant about the group disadvantage relied upon for any of these three different groups of disabled employees, beyond an assertion that group disadvantage was selfevident.[122]The Tribunal concluded that it was unable to take judicial notice of the group disadvantage relied upon in the absence of any further assistance from the claimant. The burden of proof is on the claimant. The claimant has not discharged the burden of proving the group disadvantage of the disabled employees relied upon.[123]As group disadvantage is not made out the Tribunal does not need to consider individual disadvantage or whether the PCP put the claimant at substantively the same disadvantage as the disabled employees relied upon.[124]The complaint of indirect disability discrimination (section 19A Equality Act
Remedy
[125]As the complaints are not well founded, there is no requirement to determine remedy. Employment Judge: J McCluskey APPENDIX - LIST OF ISSUES
Remedy
[1]Direct associative disability discrimination (section 13 EQA) 1.1 Did the respondent treat the claimant less favourably than it treats or would treat others because of the protected characteristic of disability by association in terms of section 13 of the Equality Act 2010 by refusing his flexible working request?[2]Indirect sex/disability discrimination (section 19A EQA)2.1 Did the respondent discriminate against the claimant in terms of section 19A of the 2010 Act? In particular:2.2 Did the PCP put, or would it put, persons with the protected characteristic of sex and/or disability at a particular disadvantage when compared to persons who do not share those characteristics?2.3 Did the PCP put, or would it put, the claimant at substantively the same disadvantage as persons who do not share either of these protected characteristics?2.4 Can the respondent show that the PCP was a proportionate means of achieving a legitimate aim?[3]Remedy 3.1 To what remedy should the claimant be entitled if his claims succeed in whole or in part?