In this case, the EAT held that an employer's need to balance the rights and needs of its workforce can be a legitimate aim to be used in a justification defence.

The Facts

The claimant was a single mother with three young children. She was a full time train driver, working in a small depot in Newcastle, in a male dominated workforce. All drivers were required to work on a rotating shift pattern, working different shifts each week, with most shifts requiring late nights and/or early mornings and/or weekend working.

The claimant (who wished to continue working and being paid as a full time train driver) had real difficulties with childcare, particularly after she separated from her husband. Over a period of time, she made several flexible working requests, which were refused, but her employer did grant her several temporary compromise solutions. In May 2014, a flexible working request was turned down on the stated basis that agreeing to it would incur additional costs, would not allow her employer to meet customer needs, and would make it impossible to reorganise work requirements. She was also told that her colleagues would not work any more contractual Saturdays or Sundays to accommodate her request.

The claimant claimed that she had suffered indirect sex discrimination.

The employment tribunal held that her employer had applied a provision, criteria or practice (PCP) which was a "requirement to be able to work over 50% of rosters and on Saturdays". The tribunal said that women still have the overwhelming responsibility for the care of children, particularly under school age, and the PCP put women in general at a disadvantage. It also put women drivers employed by this employer at a disadvantage. Subject to justification, the PCP was therefore discriminatory.

The employer tried to justify the PCP, relying on two legitimate aims:

  1. The need to provide train services, as required by its franchise agreement;

  2. The need to balance the rights and needs of its workforce – if the claimant worked all the family friendly shifts, the other drivers would need to work more anti-social hours and weekends, and they were unwilling to do this.

The tribunal rejected this defence. It said that there could be no doubt that the provision of the rail service is a legitimate aim. However, it did not consider the application of the PCP to be a proportionate means of achieving that aim: it felt that the shift system perpetuated a male dominated workforce, and that the employer should have acted to achieve a more gender balanced workforce. The tribunal suggested other arrangements which were "examples of creative thinking which could remove the discriminatory effect of the PCP". The tribunal upheld the complaint of indirect sex discrimination.

The EAT agreed with the tribunal that the working requirements imposed by the employer were indirectly discriminatory if they could not be justified. However, it held that the tribunal had not approached the question of justification correctly. It had focussed on the tribunal's own laudable aim of a gender balanced workforce and had failed to consider the legitimate aim of the employer of balancing the rights and needs of the workforce in relying on working patterns which would have an impact on drivers. The case was sent back to a fresh tribunal to reconsider whether the PCP was justified.

What does this mean for employers?

It is useful to have a case confirming that the impact of flexible working on other employees can be taken into account in a justification defence.

When looking at a justification defence, tribunals balance the discriminatory effects of a PCP against the employer's legitimate aims. The employer's evidence on why the PCP is a proportionate means of achieving their aim is key. Employers who wish to rely on the adverse impact of a flexible working pattern on other employees should be ready with evidence of this impact – this may include evidence of other employees' objections and of the employer's consideration of other working patterns.

XC Trains Ltd v CD and Aslef and others, UKEAT/0331/15/LA