The recent case of XC Trains Ltd v CD and ASLEF has looked at a challenging area for many employers, namely handling/rejecting flexible working requests; specifically whether a refusal to agree to more flexible family friendly hours for a female train driver (CD) amounted to indirect sex discrimination.
CD was one of only 17 female train drivers employed by XC Trains out of a workforce of nearly 600. She worked full-time and after separating from her partner made several requests for flexible working to enable her to look after her children. XC Trains
were obliged to enter into collective bargaining with ASLEF in respect of the roster changes that would be necessary to accommodate CD’s requests. The requests were all refused on the grounds of objections from CD’s colleagues, who complained
about the increased burden such an arrangement would have on the number of weekend and evening shifts they would have to work.
Nevertheless, XC Trains did agree with CD some temporary non-contractual variations to her working arrangements.
CD brought an ET claim alleging that XC Trains’ requirement that staff must be able to work over 50% of rosters and to work on Saturdays amounted to a provision, criterion or practice (PCP) which put women at a particular disadvantage because the role of the main child-carer is traditionally held by women. The ET agreed, basing their decision on the relative numbers and proportions of women train drivers working for XC Trains.
XC Trains asserted that the PCP was justified because it was a proportionate means of achieving the legitimate aim of providing the train service it was contractually obliged to run. However, the ET disagreed and found that the PCP was disproportionate and
suggested that XC Trains had not tried hard enough to use “creative thinking” to remove the discriminatory effect of the PCP. The ET also suggested that such reforms might improve the remarkable gender imbalance in the company’s workforce.
The EAT allowed the appeal, finding that the ET had not properly balanced the discriminatory effect of the PCP against the legitimate aims of XC Trains. Rather it had focussed too much on an aim that the ET itself had created, namely achieving a gender-balanced workforce as opposed to considering the aims put forward by XC Trains, which were its need to run a train service that fulfilled its contractual obligations and the rights/needs of its wider workforce.
The EAT did not express a view on whether the PCP was discriminatory but rather remitted the case back to a differently constituted ET panel for consideration of the important justification issue.
This case serves as a reminder that employers dealing with flexible working requests can find themselves facing complex and expensive sex discrimination claims, as well as claims brought under the flexible working statutory provisions; meaning that a careful/considered approach is always prudent – especially when rejecting requests.
The EAT decision also reinforces the importance of fully and properly analysing particular working arrangements, arising from the nature of an employer’s business (or the service it provides), to determine any potentially discriminatory impact. Specifically, whether these create potentially discriminatory PCPs, which may not be justifiable thereby exposing the employer to costly litigation whether under the Equality Act 2010 or other associated statutory provisions such as those related to flexible working.
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