In XC Trains Ltd v CD and Aslef & others, the Employment Appeal Tribunal (EAT) considered whether it was justified for an employer to refuse a female employee’s request for flexible working hours to help with childcare.

First, a quick recap on indirect discrimination…

Indirect discrimination happens when:

• An employer applies a provision, criterion or practice (PCP) generally to its workforce
• The employee has a protected characteristic
• This characteristic puts the employee (and others with that characteristic) at a particular disadvantage compared to others
• The PCP is not a proportionate means of achieving a legitimate aim (i.e. can’t be justified despite the discriminatory effect)

The background

The Claimant in this case was a female train driver.

A practice, criterion or provision (PCP) for train drivers was they needed to work 50% to a rota and to work on Saturdays.

She stated as she was a woman and had the majority of childcare duties, this was indirect sex discrimination.

The decision

Initially, the Employment Tribunal (ET) agreed the PCP did put women and the Claimant at a disadvantage, so she was discriminated against.

The Employment Appeal Tribunal (EAT) overturned this.

They didn’t dispute the finding that women were at a disadvantage with the rota and Saturday working.

This was because statistical evidence of male (542) and female (17) train drivers had been obtained with a much higher percentage of these women having difficulties.

But they did say the ET hadn’t looked properly at the legitimate aims of the Respondent.

A PCP that puts a particular group at a disadvantage will not be discriminatory if it can be justified.

The EAT didn’t confirm whether it was justified, but reverted the question to a new Tribunal to decide.

What this means for you?

It’s not certain to be made out that any flexible method of working automatically puts women at a disadvantage as the main childcare provider.

This is not an automatic assumption and does have to be proven for these particular employees, as it was in this case.

However, there are legitimate aims in having a flexible rota or refusing flexible working requests. And, in this case, to provide a proper train service and balance the rights and needs of its workforce.

The views of the workforce were particularly relevant in this case. Her colleagues were very unhappy that one full-time driver could work so-called family friendly hours, casting further anti-social hours on them.

Whether refusing to relax the rota or grant flexible working requests is the most proportionate way to deal with this matter has yet to be decided.

It’s unlikely an employer can always justify a requirement for everybody to work to a rota, and to not grant any flexible leave at all without good evidence.

The employer has to find the least discriminatory position, so it’s likely to involve some negotiation.

This is helpful to employers who may face flexible working requests and worry about discrimination, but want to take into account the effect on the rest of the workforce.

It’s legitimate to take the rest of the workforce’s views into account (actual not assumed views). But just remember to take action that is proportionate rather than absolute.

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