A requirement to work full-time has been considered to adversely affect women as it is recognised that women tend to assume greater responsibility for childcare than men.
In this case, CD had three children, all aged under 16. To assist her in managing her workload and childcare commitments she made yearly flexible working requests from 2011 to 2014. “Accommodations” were made on a temporary basis by XC Trains but the working arrangement sought by CD (to not require her to work at weekends and to limit the amount of hours she worked each week) was rejected. XC Trains justified its rejection on the basis that it would be impossible to re-organise shifts amongst current staff, particularly as some were already unhappy at working unsociable shifts. It also argued that it was more costly and the demands of the service may not be met.
CD bought a successful claim for indirect sex discrimination. The Employment Tribunal found that XC Trains had applied a PCP that all staff work 50% of the rosters and on Saturdays; that the PCP disadvantaged women as it meant that they may be unable to comply due to childcare responsibilities; that CD was disadvantaged by the PCP; and that XC Trains could not objectively justify its actions. All of the grounds were satisfied. The Tribunal highlighted the fact that other organisations with anti-social working patterns had done more to ensure their working practices meant that there was a gender balance. XC Trains had not considered if there were alternative ways of achieving its legitimate aims that did not indirectly discriminate.
The Employment Tribunal examined XC Trains’ gender balance statistics and the fact that CD made up one of the four women who drove trains at CD’s place of work. It found that this was evidence of the hurdles that women face, because of their child care responsibilities, and the reason women were deterred from applying for driving roles.
XC Trains successfully appealed the decision in the EAT. It held that the Employment Tribunal had failed to apply the correct test of balancing the discriminatory effect of the PCP against the legitimate aims advanced by XC Trains. The EAT held that the Employment Tribunal’s focus was on the aim of achieving a gender balance and not on the potential adverse effect on XC Trains and its staff if the PCP was not applied to CD.
The EAT has remitted the case to a fresh Tribunal to consider whether XC Trains can justify the PCP as a proportionate means of achieving a legitimate aim.
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