A fomer department manager at Primark is suing the retail giant for sex discrimination because she was not allowed Thursday evenings off to care for her child.
Natasha Allen was asked to ensure she was available to work the late shift as her store did not have enough senior staff to cover her absence.
The 29-year-old argued this was unfair as she was the principal carer of her then-newborn daughter Brooke.
After Primark rejected her request for flexible working, Ms Allen resigned and took her case to an employment tribunal.
At her first hearing a panel ruled she had not been discriminated against as the company also insisted male managers work evening shifts.
But she has now won the right for the case to be heard again after the President of the Employment Appeal Tribunal, Ms Justice Eady, dismissed the ruling.
The tribunal heard Miss Allen, from Rochdale, Greater Manchester, worked at the Primark in Bury from 2011.
In 2019 she gave birth to Brooke – who is now three years old. The tribunal heard she had sole responsibility for the child’s care with only “limited support” from her mother.
This led her to apply for flexible working to change her contractual hours before returning from maternity leave.
Primark was prepared to let her off late shifts on other nights but told her she needed to be available to work Thursdays from 10.30am to 8.30pm as only two of six department managers were then available, the tribunal heard.
Ms Allen argued at the 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 childcare responsibilities.”
To decide whether this requirement to work evenings was discriminatory, the original tribunal compared Miss Allen to other managers at the Bury store.
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 Ms Allen’s claims.
Ms Allen claimed in her appeal that it was a mistake to only consider the store where she worked as the late shift policy applied across the UK.
Justice Eady ruled the male managers’ circumstances were different to Ms Allen's because their late shift requirements were “informal” and not contractually obliged. She said they also had “materially different” circumstances.
“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 said.
She ordered the case of indirect sex discrimination and constructive unfair dismissal to be heard again.
Additional reporting by Solent News
