In the case of XC Trains Ltd v. CD and ASLEF, the Employment Appeal Tribunal considered whether indirect discrimination arose when the employer rejected flexible working requests made by a single mother due to her childcare needs.
Facts
The claimant was a female train driver and a single mother with three young children. She had great trouble arranging child care to enable her to fulfil her obligations under her contract of employment. She therefore submitted several flexible working requests seeking to reduce her working hours and weekend work. Her employer rejected her requests, stating the shifts were intentionally rotated to allow all drivers access to family friendly hours therefore granting flexible working would limit other drivers’ access to family friendly shifts. Furthermore, the company said it was obliged to provide an all week service to customers under its franchise agreement.
The claimant brought claims for indirect sex discrimination.
The employment tribunal found that the company’s requirement that employees work at least 50% of their roster and on a number of Saturdays was a provision, criterion or practice (PCP) which put women at a particular disadvantage and was therefore potentially indirectly discriminatory. The company argued that its actions could be justified as a proportionate means of achieving its legitimate aim of providing train services as required by its franchise agreement and the need to balance the rights and needs if its employees. The tribunal concluded that the company had failed to make out the justification defence stating that it employed a disproportionate number of men compared to women.
The company appealed.
EAT decision
The EAT allowed the appeal. It upheld the tribunal’s decision that requiring a workforce to work over 50% of rosters and on Saturdays amounted to potential indirect sex discrimination. However, the tribunal had failed to properly weigh the employer’s legitimate aims against the discriminatory effect of the PCP and consider whether its actions could be justified.
The claim was remitted to a fresh ET to correctly decide whether the discriminatory impact could be justified.
Comment
This case is a reminder for employers that where a policy which is implemented across the workforce disadvantages or may disadvantage some of its employees, consideration should be given to whether that disadvantage can be balanced by the operational or commercial imperatives which motivated the policy. Before implementing the policy, employers should identify the business aim they are trying to achieve and then go on to consider whether that aim can be achieved in any other way that does not cause, or causes less disadvantage to particular employees.
XC Trains Ltd v CD & Anor UKEAT/0331/15/LA
