In XC Trains Ltd v CD and Aslef and others (UKEAT/0331/15), the Employment Appeal Tribunal (EAT) considered whether it was indirect sex discrimination to require a female train driver (who was also a single mother) to work over 50% of rosters and on Saturdays, and whether this could be justified.
Indirect sex discrimination occurs where:
- A applies to B a provision, criterion or practice (PCP)
- A applies (or would apply) that PCP to persons not of the same sex as B
- The PCP puts or would put persons of B's sex at a particular disadvantage
- The PCP puts or would put B at that disadvantage
- A cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.
The claimant commenced employment with XC Trains Ltd (XC) on 6 January 1997 as a train driver, although by 2015 she was working as a train driver/instructor. She was employed on a full time contract.
XC employed 559 train drivers, 17 of whom were women. The claimant was based at Newcastle train station (which happened to be the smallest depot), where there were about 21 train drivers of whom four were women.
In common with all other drivers, the claimant’s contractual hours were a 35 hour week over six days, with daily working hours determined by the requirements of the depot but not less than five hours and not more than 10 hours per day. There was also an obligation to work on rostered Saturdays.
The claimant had three children, one born in 2008 and twins born in 2009. When the claimant separated from her husband, childcare became more difficult and the claimant made a number of flexible working requests (which involved not working early or late shifts and not working on Saturdays or Sundays). Although the claimant’s flexible working requests were refused, various accommodations were made for her for fixed periods of time.
In June 2014 the claimant accepted an accommodation, which involved her working shifts on four days each week over an eight week rota.
The claimant brought a claim of indirect sex discrimination.
Employment tribunal decision
The employment tribunal (ET) held that XC applied a PCP, namely a requirement to be able to work over 50% of rosters and on Saturdays.
The ET observed that the percentage of women train drivers to the total was 3.04% and that at the Newcastle depot 19.04% of the drivers were women. The ET concluded that the PCP disadvantaged women: their caring responsibilities meant that they could not comply with the PCP, linked as it was to the shift system. It was also the ET’s view that women still have the overwhelming responsibility for the care of children, particularly those under school age.
The ET held that particular disadvantage to women as compared to men was made out: a higher proportion of female drivers (11.76%) than male drivers (0.75%) were unable to comply with the PCP and the shift system that underpinned it.
The ET also held that the PCP placed the claimant at a particular disadvantage on the basis that she was a single mother from April 2012 onwards of three children under the age of five. While she had employed child carers and latterly full time nannies, even with that assistance she was still unable to meet the requirements of the PCP and so had to rely on the help of her mother, without whose assistance she would have been unable to carry on working.
In considering whether the application of the PCP was a proportionate means of achieving a legitimate aim, namely the provision of the rail service, the ET held that XC had failed to show that this was the case. In the ET’s view, there were alternative shift arrangements that could be compatible with women’s caring responsibilities while meeting the requirements of providing a train service.
Accordingly the ET upheld the claim of indirect sex discrimination. XC appealed.
The following grounds of appeal were raised before the EAT:
- The ET erred in its approach as to the question of whether the PCP put women at a particular disadvantage (on the basis that the ET had relied on a pool that comprised the entire driver workforce of XC and that the correct pool was those drivers who had sought accommodations not to work to the requirements of the PCP).
- The conclusion of the ET that the claimant was put at that disadvantage was perverse (on the basis that the evidence from June 2014 was that the claimant had successfully worked a roster that included some shifts out of family friendly hours and which included Saturdays, ie she had been given an accommodation that worked for her).
- The ET erred in the application of the test as to whether XC could show that the PCP was a proportionate means of achieving a legitimate aim (on the basis that the ET failed to deal with the second part of the legitimate aim relied on by XC; the legitimate aim relied on was providing train services as required by the franchise agreement and the need to balance the rights and needs of its workforce).
The EAT held:
- The ET did not err in holding that the PCP requiring drivers to work 50% of the rosters and on Saturdays put women at a particular disadvantage. The ET correctly based its decision on the relative numbers and proportions of XC’s female and male train drivers who could and could not comply with the PCP.
- The ET did not err in holding that the claimant was put at that particular disadvantage.
- The ET had however erred in law by failing to weigh the legitimate aims of XC, rather than their own aim for XC of a gender balanced workforce, against the discriminatory impact of the PCP. The ET’s decision was made without balancing the discriminatory effect of the PCP against the legitimate aims of XC to run a train service fulfilling their contractual obligations under the franchise and the rights and needs of the workforce.
The appeal was therefore allowed and the claim was remitted to a fresh ET to decide whether the discriminatory PCP was a proportionate means of achieving a legitimate aim.
Employees with at least 26 weeks' continuous employment can make a request for flexible working under the statutory scheme for any reason. A request must be dealt with in a reasonable manner and the employer must notify the outcome to the employee within three months.
This case acts as a useful reminder for employers considering flexible working requests to be live to the fact that, in addition to claims under the statutory scheme for flexible working, employees may have further protection under anti-discrimination legislation.
Typically, flexible working requests will be made by employees seeking to vary their working hours in accordance with childcare commitments (as in this case), religious requirements (such as not wanting to work on the Sabbath, or being allowed time off to pray or attend worship) or seeking adjustments because they are disabled. Such requests can give rise to claims for sex, religion or belief or disability discrimination.
In order to defend potential claims of indirect discrimination employers will need to be able to justify their policies or management decisions. Therefore when considering requests for flexible working, employers should explore whether there are facts or reasons surrounding the request that could potentially give rise to an indirect discrimination claim. If so, then consideration needs to be given to whether the potential discriminatory effect can be justified if the flexible working request is rejected. Employers should document both the legitimate aims they are trying to achieve and the reasons why they believe the PCP is a proportionate means of achieving those legitimate aims. This will involve employers considering whether there are alternative (and less discriminatory) ways of achieving the needs of the business.