A recent case has highlighted the issues employers face when accommodating employees with child care commitments.
In XC Trains Ltd v CD and another Claimant, who was a single mother of three children, was employed as a train driver and instructor. At the depot where the Claimant worked approximately 19% of her fellow drivers were women. The provision of the train service required the drivers to work on rotas at the weekend. The Claimant struggled combining this with her personal commitments. She made a number of statutory flexible working requests but these were rejected as the employer said the requests would have a detrimental impact on the train service and could not be accommodated. The Claimant then brought a tribunal claim saying that the requirement to work on the weekend rotas indirectly discriminated against her as a single mother.
Where an employer requires employees to do something it can be known, in employment terms, as a “condition, practice or precedent “or “PCP” for short. A PCP can have the indirect effect of discriminating against some employees – as in this case where the Claimant said that the PCP for weekend rotas discriminated against her as a single mother and was therefore sex discrimination. To defend such a claim the employer needs to “justify” the PCP (even if it is potentially discriminatory). So in this case the train company said that the weekend rota was necessary in the interests of providing a train service to its customers and they were justified in this even if the PCP indirectly discriminated against the Claimant.
The Employment Tribunal (ET) in this case decided that the PCP could not be justified and found in favour of the Claimant. They said the employer had failed to show that the PCP was a proportionate means of achieving a legitimate aim (the provision of the rail service). The ET said there were alternative shift arrangements that were compatible with women’s caring responsibilities while meeting the requirements of providing a train service and the employer ought to have investigated these.
Not surprisingly the employer appealed to the Employment Appeal Tribunal (EAT). The EAT said the ET had got the balance wrong and had failed to weigh the discriminatory effect of the PCP against the legitimate aims of XC to run a train service fulfilling their contractual obligations under the franchise. So the appeal was allowed and the claim remitted to a fresh ET to decide if the discriminatory PCP was a proportionate means of achieving a legitimate aim.
The case shows how difficult these situations are to deal with and how finely balanced the decisions of Tribunals can be. Whether or not a PCP is justified or not is subjective – different tribunals may arrive at different conclusions.
In order to better defend claims employers should, when considering requests for flexible working, explore if there are factors that could give rise to an indirect discrimination claim. If there are then consider whether the potential discriminatory effect can be justified and document the legitimate aims you are trying to achieve and the reasons why you believe the PCP is a proportionate means of achieving those legitimate aims. This will involve you considering whether there are alternative (and less discriminatory/ safer) ways of achieving the needs of the business.