Employee v the Workforce - it's a Balancing Act

The Facts

CD was employed as a train driver by XC Trains Ltd (XC) on a full time contract. She worked at Newcastle train station where 21 train drivers were based, only 4 of whom were women.

As a single mother with three young children, CD had trouble arranging child care to enable her to comply with the shift patterns that drivers were required to work. She therefore made several requests for flexible working, seeking to reduce her working time at the extremes of the working day and on weekends, all of which were refused. Instead, she was granted various 'accommodations' which varied her working pattern on a temporary basis.

CD was dissatisfied with these 'accommodations' and pursued greater flexibility but, because changes to her working pattern affected the shifts that the other drivers were required to work, a number of drivers complained and eventually refused to work anymore contractual Saturdays or Sundays in order to accommodate CD's requests. No greater flexibility was therefore granted.

CD brought a number of claims, including a claim against XC for indirect discrimination.

The Employment Tribunal (ET)

The ET held that XC had applied a PCP, which was a requirement that drivers work over 50% of the rosters and on Saturdays, and that this PCP put women, including CD, at a particular disadvantage and was therefore indirectly discriminatory.

XC argued that the application of the PCP could be justified as a proportionate means of achieving its legitimate aim of providing train services as required by its franchise agreement and the need to balance the rights and needs of its workforce.

The ET concluded that XC had failed to make out the justification defence. It was influenced by the lack of female representation on XC's workforce and suggested other ways that XC could have accommodated CD and improved gender balance. XC appealed.

The Employment Appeal Tribunal (EAT)

The EAT concluded that the ET had erred in its consideration of whether XC had made out the justification defence, and in particular had given insufficient weight to the adverse effects that accommodating CD in the ways it had posited would have had on other drivers. The EAT concluded that the ET had failed to properly weigh XC's legitimate aims (rather than its own aim to improve gender balance) against the discriminatory effect of the PCP.

The EAT allowed XC's appeal and remitted the claim to a fresh ET to correctly consider the justification defence.

Best Practice

Employers occasionally receive requests from employees which conflict with the organisation's PCPs or the rights and needs of other staff. It can be difficult to satisfy all parties and other employees might complain about the effect one individual's request will have on them.

The employer must therefore undertake a careful balancing act. Where requests are refused, an employer should always set out clearly, in writing, the consideration they have given to the request and their reasonable reason(s) for refusal.

For more information, please contact Lorna Scully in our Employment Law team on 0121 227 3719.