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Judgment trains employers on sex discrimination risk with flexible working requests

While the right to request flexible working is available to all employees with over 26 weeks service, requests to vary working hours are often made…

While the right to request flexible working is available to all employees with over 26 weeks service, requests to vary working hours are often made for childcare reasons. As more women than men bear the principal burden of childcare, refusing a request on these grounds is potentially indirect sex discrimination.  

In the case of XC Trains Ltd v CD and ASLEF the Employment Appeal Tribunal has looked carefully at when such a decision can be legally justified and issued a reminder that the Employment Tribunal should focus on the particular aims of your business and the reasons behind your decision.

The facts

CD was employed as a train driver employed on a full time contract, with a complex rolling rota which included unsocial hours and weekend working. When she separated from her partner, CD found it difficult to balance this work with caring for her three children (who were all under the age of five). On a number of occasions, CD requested but was refused flexible working. Her original request was to work between 8 am and 6pm and not to work on Saturdays or Sundays, and she subsequently put forward various different proposals involving working core daytime hours during the week and limiting weekend work.

CD’s employer allowed her various temporary non-contractual variations to working hours, but refused to make any permanent contractual changes.  It stated that having fewer drivers available to work early and late shifts and at weekends would result in increased costs and make it very difficult to meet the requirements of their contract. The employer also felt it would be impossible to reorganise work amongst existing staff (who would need to work more unsocial shifts if CD’s request was agreed). Indeed a number of existing staff had complained about the temporary arrangements offered to CD and the body representing the drivers (with which the employer was obliged to collectively bargain in respect of roster changes) objected to the increased burden that would be placed on other staff.

CD alleged that her employer’s requirement that staff must be able to work over 50% of rosters and to work on Saturdays was a provision, criterion or practice (PCP) which put women at a particular disadvantage.  She said that this was indirect sex discrimination.

The decision

The Employment Tribunal that first heard the case found that the policy placed women, and CD herself, at a disadvantage. Statistical evidence showed that a greater proportion of women than men in the employer’s business had requested changes to their shift pattern. The employer had very few women drivers at all, but a high proportion of those they did have struggled due to childcare responsibilities.

On the issue of justification, the Tribunal accepted that the provision of a rail service as required by the franchise agreement and the need to balance the rights and needs of the workforce, were a legitimate aim. However, it concluded that the means of achieving it employed by XC Trains was not proportionate. In a very strongly worded Judgment the Tribunal held that the employer had failed to think creatively enough to eliminate the potentially discriminatory effects of its shift system and stated that the specific collective bargaining arrangements in this case served to “perpetuate a workforce which, in terms of gender balance, has no place in the 21st century”.

When XC Trains appealed, the EAT held that this decision went too far. The Tribunal had been right to say that indirect discrimination was engaged and CD’s struggle to work the shift pattern was enough for her to be disadvantaged by it. However in deciding whether the employer’s policy was a proportionate means of achieving a legitimate aim the Tribunal had exceeded its remit. The Tribunal had made a legal error by failing to adequately weigh the legitimate aims identified by the employer against the discriminatory impact of the PCP.   

Instead, the Tribunal had attached too much weight to its own (laudable) notion that the company should be striving to achieve a gender-balanced workforce. While the Tribunal did, to some extent, need to consider the availability of alternative non-discriminatory approaches, it had gone too far in this case in suggesting its own ideas about shift patterns and ways of working that had not been raised during the course of the case.

What does this mean for me?

This case reminds us of the difficult balancing exercise you are required to undertake when faced with a flexible working request which relates to childcare responsibilities.

You can, in some circumstances, refuse such requests and you are able to operate a shift rotation system that may have an adverse effect on those with childcare responsibilities. This Judgment reinforces the fact that, where you refuse a flexible working request, it is important to be mindful of whether the facts and circumstances surrounding the request might give rise to a claim of indirect sex discrimination.  If they do, you will need to carefully consider how to justify your decision to turn down the request. What is the ‘legitimate aim’ you are trying to achieve? How and why does this outweigh the potentially discriminatory effect on the individual?

There are eight prescribed statutory reasons you can rely upon to turn down a request for flexible working including: additional cost; a detrimental effect on quality; a detrimental effect on the ability to meet customer demand; and an inability to re-organise work between existing staff. However, identifying an acceptable reason will not in itself protect you from a successful discrimination claim. You will still need to explain, with close reference to all relevant facts and circumstances, why a particular request cannot be granted (taking into account the nature of the work you do and the individual’s particular role and responsibilities).

Bear in mind that you cannot always refuse a flexible working request simply because other staff object or are unwilling to make changes.  To refuse a request you must be satisfied that reorganisation of work amongst existing staff is not just inconvenient, but will cause real disruption that is difficult to work around.

Comment

The Tribunal that first heard the case placed a very heavy burden on the employer holding that, because it had failed to take steps to introduce new work patterns and change the primarily male-dominated status quo, it had failed to act proportionately.

 It will come as a relief to many of you that the EAT chose to rein in this Judgment and state that that the Tribunal should confine itself to analysing the facts of the case and balancing any negative impact on the employee against business need.

While it is sometimes necessary to think outside the box and take on board an employee’s suggestions when considering a flexible working request, this Judgment acknowledges that employers are often constrained by practical considerations and the nature of the work they do or the services they are required to provide.

Phil Allen (phil.allen@weightmans.com) is a Partner in the Employment, Pensions and Immigration Team and is based in Manchester. If you have any questions, please do not hesitate to get in touch with Phil or speak to your usual Weightmans contact.