It’s a dog’s life: the burden of primary care and proving group disadvantage

At Farore Law, we regularly advise and represent senior executives in indirect discrimination claims under section 19 of the Equality Act 2010. For example, we are currently acting for a female senior executive in an indirect sex discrimination claim where the PCP in question relates to a Good Leavers/Bad Leavers provisions of a LTIP scheme whereby any leavers who bring proceedings in the Employment Tribunals are automatically labelled a ‘Bad Leaver’, resulting in the forfeiture of their vested LTIPs

In order to succeed in a s 19 claim, the Claimant must (amongst other things) show that the PCP in question puts (or would put) persons whom share the same protected characteristic at a particular disadvantage compared to their comparators. In an indirect sex discrimination claim, the Tribunal is required to identify the appropriate pool of men and women for comparison and then consider whether there is a particular disadvantage to people sharing the relevant protected characteristic. This can be shown in various ways – such as direct evidence, use of statistical materials, or by the taking of judicial notice.

Marston (Holdings) Limited v Perkins [2025] EAT 20 illustrates the practicalities of pursuing a s 19 claim and trying to prove group disadvantage by relying on judicial notice. There, the Employment Appeal Tribunal (“EAT”) held that the Employment Tribunal (“ET”) made an error of law when it concluded that a Provision, Criterion or Practice (“PCP”) requiring workers to travel significant distances put the Claimant (a female) at a disadvantage due to her childcare responsibilities for the purposes of an indirect sex discrimination claim under section 19 of the Equality Act 2010. In particular, the EAT held that it was unclear whether the ET approached the question of whether the PCP in question placed women at a group disadvantage.

The Facts

The Claimant was the Head of Enforcement in a national company concerned with the enforcement of penalties (such as council tax and parking fines). As part of her role, the Claimant was required to travel as and when needed and was concerned that the geographical area was ever more expanding.

The Claimant at the relevant time had primary caring responsibilities for her two children and objected to the requirement of having to travel as part of her role. The Claimant was subsequently made redundant and brought proceedings against the Respondent for unfair dismissal and indirect sex discrimination.

The ET upheld both claims. In relation to the indirect sex discrimination claim, the ET stated that it had taken judicial notice of the fact that women are the primary carers of small children and that a PCP could be intrinsically liable to disadvantage a group with a particular protected characteristic. It went on to hold that the link between the protected characteristic and the disadvantage might be obvious. On the facts, the Respondent’s justification defence was unsuccessful.

The Respondent appealed and was successful.

EAT decision

The EAT decided that a Tribunal is entitled to take judicial notice on matters in circumstances where it is satisfied that it is warranted. However, the EAT concluded that the ET had erred in concluding that “women are the primary carers of small children” without giving notice to the parties and allowing both sides to make submissions, as there is no case law supporting the conclusion that women are the primary carers of small children (as opposed to merely taking judicial notice of the fact that women were more likely to take on the greater burden of childcare responsibilities, something which is well-established by case law).

What to take away

The Perkins decision comes across as rather harsh – after all, many of us would be quick to conclude that women are more likely than not to bear the burden as a primary carer for small children. This may be a sentiment shared by the Tribunal’s panel, who may also reach these conclusions by drawing on their own industrial experience. In addition, to state that there is a distinction between concluding that women are the primary carers of small children (as the ET had done in Perkins) and the conclusion that women take on the greater burden of childcare responsibilities (which is well-established by case law) comes across as very odd. 

Claimants who attempt to establish group disadvantage should not assume that a Tribunal will readily take judicial notice on certain matters. As such, a Claimant may be better off trying to deploy evidence (such as statistics from the ONS) as a fall-back position when attempting to establish group disadvantage for the purposes of a s 19 claim.

Farore Law is a specialist boutique employment litigation firm that specialises in complex, high-value employment disputes. Contact us if you need help.