A recent case, XC Trains v CD, is a useful reminder to employers of the need to consider the potentially discriminatory impact of refusing flexible working requests. The Employment Appeal Tribunal (EAT) hearing the case had to decide whether it was sex discrimination for a company to require a female train driver with childcare responsibilities to work 50 per cent of rosters and Saturdays.
The claimant (anonymised as CD) had a full-time contract as a train driver/instructor – one of very few female employees in that role (only 17 drivers out of 559 employed by the train company were women). The employer’s rota for drivers included antisocial hours and weekend working. The driver made flexible working requests because she was struggling to cope with the effect of the rota on her childcare responsibilities when she became a single mother.
Flexible working requests were considered by a committee at the company. It rejected the train driver’s requests on the basis that it would be unfair to allow her to work only the family-friendly shifts because other drivers would then be denied the choice of those shifts as a result. The committee stated that it had received complaints from other drivers at the prospect of these requests being granted and used that as part of its rationale for rejecting CD’s requests. Ultimately, an agreement was reached and changes were made to her shift pattern but not on the terms that she had requested.
The train driver brought a claim of indirect sex discrimination against the employer on the basis that it had applied a discriminatory provision, criteria or practice (PCP), namely a requirement to be able to work 50 per cent of rosters and on Saturdays, which she alleged disadvantaged female train drivers.
An employment tribunal (and later the EAT) agreed that the required shift pattern did put women generally at a disadvantage because more women have caring responsibilities than men and would be unable to work those hours. Both the tribunal and EAT observed that out of 17 women drivers in the train company’s workforce, two had requested flexible hours compared to four out of the male train drivers: this equated to 11.76 per cent of female drivers compared to only 0.75 per cent of male drivers. Accordingly, both tribunals held that women drivers at the company were put at a particular disadvantage due to the PCP.
In indirect discrimination claims, it is possible to avoid liability if the PCP can be objectively justified – in other words, shown to be a proportionate means of achieving a legitimate aim. Here the employment tribunal found that the PCP could not be justified and concluded that the employer was unwilling to agree to anything that disadvantaged its predominantly male workforce. It decided that alternative shift patterns were available that would meet the employer’s business needs while still being compatible with the childcare responsibilities of those women who were their children’s main carers.
The tribunal upheld CD’s claim of indirect sex discrimination. The employer appealed.
The EAT found the employment tribunal had focused too heavily on sociological observations around the lack of gender balance in the employer’s workforce rather than properly considering the justifications submitted by the train company and, because of this, the case was remitted to a fresh tribunal for the question of objective justification to be reconsidered.
Although the employer in this case may still be able to justify its PCP when this point is addressed again, organisations should bear in mind the risks associated with rejecting flexible working requests without giving them proper consideration. Staff may be able to demonstrate easily that a PCP disadvantages them, particularly where a workforce contains more employees of one sex than another, and then the onus will be on the employer to show a tribunal its justification if it is to avoid a finding of discrimination. Case law clearly indicates that mere inconvenience will not be sufficient to justify what would otherwise be discriminatory treatment.
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