Indirect sex discrimination: requirement to travel long distances

Indirect sex discrimination: requirement to travel long distances 

The EAT has recently considered an indirect sex discrimination claim arising from an employer placing a new requirement on a working mother that she would need to regularly travel long distances for work purposes in the future. In particular, the EAT considered whether the tribunal had correctly taken judicial note of the fact women as a group tend to have more childcare responsibilities. 

Indirect sex discrimination occurs where an apparently neutral provision, criterion or practice (PCP) is applied to both sexes, this PCP causes both a group disadvantage to members of one sex and also to the claimant, and the PCP is not objectively justified. Workplace rules and contractual requirements can both amount to PCPs. 

The EAT was considering a claim for indirect sex discrimination. P, a grade three manager, worked under an employment contract which listed Lancashire as her place of work and did not require her to travel for work purposes. P was allocated a new line manager in Summer 2021 and, over the next six months, he began asking her to attend face-to-face team meetings long distances away from home. He also told P she needed to travel to Essex for work and changed her job description without her consent to include a requirement to travel as and when required. He also threatened P with disciplinary action if she did not comply with these requirements. P repeatedly explained the childcare issues these requirements would cause her, but the new line manager persisted with his demands on her. 

Eventually, in February 2022, P said that if her role now required long distance travel it was no longer suitable for her because she has childcare responsibilities that made long distance difficult. In March 2022, after P declined a further insistence that she travel for her role, the line manager told P that she has three options: disciplinary action, fire and re-hire under a new contract requiring long distance travel or redundancy. P refused to agree to the requirement to regular long distance travel and eventually agreed to be made redundant. 

An employment tribunal upheld P’s claims of unfair dismissal and indirect sex discrimination. The tribunal held that the requirement to travel long distances away from home regularly was a PCP, and that this PCP placed both women as a group and P at a disadvantage. In reaching this decision, the tribunal took judicial notice of the fact women are more likely to have childcare responsibilities and also noted that commercial childcare is almost impossible to secure outside the hours of 7am and 6pm (hours which would be breached if required to travel long distances). The tribunal also rejected the employer’s argument that the PCP of regular long distance travel was objectively justified. The employer successfully appealed.

The EAT held that the tribunal had been entitled to: (a) identify the PCP that it had; (b) hold that this PCP had been applied to all the employer’s grade three managers; (c) hold that the male grade three managers did not suffer the same disadvantage as P; (d) take judicial note of the fact women are more likely than men to suffer childcare disadvantage; and (e) infer from P’s circumstances that she would have real difficulty complying with the PCP. 

However, it was unclear from the tribunal’s reasoning whether it had approached the question of whether women as a whole would suffer group disadvantage on the basis that the childcare disparity was intrinsic in the PCP itself, or simply an obvious consequence of it. The tribunal had failed to properly consider the application of the PCP, as a general rule, to all the employer’s grade three managers rather focusing on its application to P (the only female grade three manager). It should also have allowed submissions on the issue of the availability of commercial childcare outside the hours of 7am and 6pm.

The EAT considered the tribunal’s decision to take judicial notice of the childcare disparity women face. Taking ‘judicial notice’ is the process which allows a court or tribunal to recognise a commonly accepted fact without requiring specific evidence to prove it. Here, the tribunal had taken judicial notice of the commonly accepted fact that women are more likely to hold primary childcare responsibilities than men. However, the EAT held that the tribunal appeared to have jumped from taking judicial notice of this straight to the conclusion that women cannot travel long distances because of that childcare disparity. Although it was obviously true that P would struggle with the requirement to travel long distances due to her childcare difficulties, it was not necessarily the case that a requirement to travel long distances would cause a disadvantage to women as a wider group. 

Finally, the EAT held that the tribunal had not sufficiently considered whether the requirement to travel as part of P’s role could be justified as a proportionate means of achieving a legitimate business aim. The tribunal’s error in approach in relation to the other issues had tainted its consideration of whether the employer had established that the introduction of the PCP into the job requirements for all of its grade three managers was objectively justified; the tribunal’s sole focus on P’s position meant that its reasons did not explain how it had engaged with this broader question. 

Marston (Holdings) Ltd -v- Perkins [2025] EAT 20