The case of XC Trains LTd v CD and ASLEF concerned “indirect discrimination.” Indirect discrimination is where:
- A non-discriminatory requirement (“Provision, criterion or Practice” or PCP) has a disproportionately adverse effect on people with a protected characteristic which puts them at a particular disadvantage as compared with people without that protected characteristic; and
- The Employer cannot show that that PCP is a “proportionate means of achieving a legitimate aim”. [Ref: s19, Equality Act 2010]
The Claimant was a female train driver and a single mother with 3 children under the age of 5. She applied for flexible working so that her weekday working hours were between 8.00am and 6.00pm and not to have to work at weekends. In practice, drivers worked rotating shifts which involved some shifts starting early morning, others finishing late at night and some at the weekend.
The Employment Tribunal found that 2 out of 17 women drivers employed had made applications for flexible working, but only 4 out of 532 male drivers had done so. It found that the fact that 11.76% of female drivers had applied for flexible working compared with 0.75% of male drivers was indicative of women being put at a particular disadvantage compared with men. The Tribunal also found that alternative working arrangements which were less rigid could have enabled more family-friendly hours to be available for female drivers and that the Employer’s justification was therefore not a proportionate means of achieving a legitimate aim.
On appeal, the Employment Appeal Tribunal held that the original Tribunal had decided the question of “particular disadvantage” correctly, but had not properly considered the employer’s legitimate aims and whether the requirement to work unsociable hours was a proportionate means of achieving those aims.
It was found that the Tribunal had failed to consider the legitimate aim of balancing the rights and needs of the workforce, as the suggested changes to working patterns which would have an impact on other train drivers and the other suggestion of using “bank staff” would incur increased costs. In the EAT’s view, the Tribunal had not made an assessment of their own suggestions, nor conducted the exercise of balancing the legitimate aims of the employer against the discriminatory effect of the PCP.
The case was therefore remitted to a different Tribunal to consider the legitimate aim of the employer and weigh this against the discriminatory effect of the PCP.
From a practical point of view, when faced with a request to work flexibly, an employer should always consider the balance of interests and give genuine, legitimate reasons to refuse wherever possible. These reasons can then be noted and could provide the basis on which a Tribunal can reject a claim of indirect sex discrimination.
If you are an employer faced with a flexible working request and need guidance on how best to respond without risking unnecessary exposure to a discrimination claim, please contact us without delay for an initial discussion without charge or obligation.