No, says a UK employment tribunal in a recent case brought by part-time Qantas cabin crew for indirect sex discrimination after their employer decided to include them on the standby rota, causing them childcare issues (Mrs A Hayes & others v Qantas Cabin Crew (UK) Limited).
What is indirect sex discrimination?
Broadly speaking, indirect sex discrimination can occur where a workplace rule, practice or procedure is applied to all employees, but disadvantages those of a particular sex. For example, a requirement that job applicants must be six feet tall could be met by significantly fewer women than men. Where such a policy disadvantages an individual with that characteristic, it will amount to indirect discrimination unless the employer can justify it by showing that it is necessary in order for the business to work.
What happened in this case?
Qantas was a UK subsidiary of Qantas Airways ("Qantas"), which provided cabin crew to work on Qantas Airways flights from London Heathrow to Dubai, Sidney and Melbourne.
Each aircraft was required to have a set minimum number of cabin crew working on it. In order to ensure there would be sufficient cabin crew on each flight, Qantas had to have a full complement of crew available on standby. When an employee was on standby, they had to be at Heathrow Airport ready for duty within two hours of being told that they had been allocated to a flight. Historically, only full-time employees had been included on the standby rota, and part-time employees were not required to be on standby for work.
However, in 2014, Qantas experienced issues in its operations from London caused by high levels of sick leave and insufficient crew and managers available on standby. This put flights at risk and led to operational instability. Qantas found that it could not achieve the required standby crew when only full-time employees were required to be on standby.
Also, some full time cabin crew expressed concern about how unstable their lives were becoming because they were regularly included on the standby rota and did not have the same ability as part-time cabin crew to influence their working time through Qantas's bidding system.
After a consultation process was carried out with employees and initiatives trialled, a proposal was made to include both part-time and full-time cabin crew on the standby rota in order to address these issues.
However, the claimants, who were all part-time female cabin crew, raised a grievance in which they alleged that including them in the standby rota was indirect sex discrimination. They said that as primary child-carers, including them on the standby rota gave them particular difficulties. The main concern was the possibility of a lengthy trip to Australia on two hours' notice. They all had children of pre-school age and did not have childcare available on an ad hoc basis. They said that it was unreasonable to expect a primary carer to have childcare available for ten straight days on top of their usual scheduled childcare, 'just in case' they were called up for work while on standby. They put forward a number of alternative solutions which they asked to discuss, such as a reassurance that they would not be called upon for Australia trips or a limit on when they could put on the standby rota for longer trips.
The grievance was considered but Qantas decided to go ahead with the proposal to include all cabin crew on the standby rota, although full-time cabin crew would be on standby more frequently than part-time crew.
What did the tribunal decide?
The tribunal accepted that female employees were at a particular disadvantage in comparison with men when it comes to working standby as a result of the difficulties this caused them in relation to childcare. The tribunal also accepted that the claimants had actually experienced difficulties in practice, and so the indirectly discriminatory effect was made out, subject to the employer's justification arguments.
However, the tribunal concluded that Qantas was justified in including part-time cabin crew on the standby rota because it was a proportionate means of achieving legitimate aims. The legitimate aims included achieving operational stability and sharing standby duties out fairly amongst all cabin crew where only including full-time cabin crew on the standby rota had caused issues. As a result, the tribunal found that the claimants had not been indirectly discriminated against on the ground of their sex.
The tribunal accepted that the premium long-haul market was highly competitive and that, in order to compete in that environment, Qantas had to provide a premium service to customers by having a full complement of highly trained cabin crew on each flight, which in turn required it to have a full complement of cabin crew on standby.
Key to the tribunal's reasoning in reaching its conclusion appears to have been the fact that Qantas had put in place a variety of arrangements to help reduce the impact of standby duties on part-time employees. This included the ability for crew to bid for leave and arrange swaps (including swapping standby duties) and to take unpaid leave or carers' leave, and these had ameliorated the effects of being on standby. Another key factor appears to have been the flexible approach that Qantas had taken to dealing with issues which arose in practice as a result of part-time employees being included on the standby rota. In every case, Qantas agreed a solution with the employee which removed the requirement to undertake a duty that was difficult for them. For example, it had allowed them to take carers' leave even where they did not qualify for it.
The tribunal recognised that there was a careful balance to be struck between the needs of the business and the impact on part-time employees with childcare responsibilities, and this is an example of a case where the employer was able to justify having a policy that put part-time female employees at a particular disadvantage.
However, although Qantas successfully defended this claim, the employment tribunal was critical of their approach, including the fact that they did not consider whether including part-time employees on the standby rota could amount to indirect sex discrimination. Qantas was fortunate that the employment tribunal reached the decision it did and a different result may have been reached if they had not taken such a flexible approach in practice to dealing with employees who experienced childcare issues during a period of standby.
This case is a reminder that businesses should be alive to the potential for indirect sex discrimination claims by employees with childcare responsibilities where a provision, criterion or practice causes employees difficulties in meeting those responsibilities, and ensure they can justify having that provision, criteria or practice in place.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.