A Primark employee is suing the retail giant for not allowing her to have time off to care for her new baby.
Natasha Allen was working as a manager in the store when she was asked to 'guarantee her availability' to work the late shift on Thursdays because the store did not have enough senior staff to cover her absence. However, the 29 year old argued this was unfair and has gone on to try and sue the company for sex discrimination.
The new mum argued that she was the principal carer of her then new born daughter. After the clothing chain rejected her request for flexible working, the departmental manager resigned and took her case to an employment tribunal, reports Wales Online.
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At her original hearing a panel ruled she had not been discriminated against because the firm's insistence that managers work evening shifts applied to men too. She 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.
The tribunal heard Miss Allen, from Rochdale, Greater Manchester, worked at the Primark store in Bury from 2011. In 2019 she gave birth to Brooke - who is now three years old. The hearing was told she 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'. 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. 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)'. Justice Eady ruled the male manager's circumstances were different to Miss Allen's because their requirement to work Thursday evenings were 'informal' and not contractually obliged.
She 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.
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