On 28th July 2016 the EAT handed down its judgment in the case of XC Trains Ltd v CD & Anor UKEAT/0331/15/LA.

The Claimant, a female train driver, had three children, one born in 2008 and twins in 2009. The Claimant and her husband separated in 2012 and child care became more difficult. The train company had a requirement that train drivers worked at least 50% of their roster, which included a number of Saturdays. The Claimant requested, but was refused, flexible working. She was granted a number of accommodations over time through various shift patterns but ultimately she did not wish to work weekends and her colleagues were not happy to cover and do extra weekend shifts to accommodate her.                                 

Indirect sex discrimination occurs where:

  • A applies to B a provision, criterion or practice (PCP)
  • A applies (or would apply) that PCP to persons not of the same sex as B
  • The PCP puts or would put persons of B's sex at a particular disadvantage
  • The PCP puts or would put B at that disadvantage
  • A cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim. 

The Employment Tribunal which originally heard the case found that here had been Indirect Sex Discrimination and that the train company did operate a PCP which placed female drivers at a disadvantage, having in mind that women are still in the majority of cases the primary care givers to children under school age. 

The EAT held that the original Tribunal did not err in finding that the the PCP placed female drivers at a disadvantage or that in particular it placed the Claimant at a disadvantage.  However the EAT held that the original Tribunal did err when they failed to weigh the legitimate aims of the First Respondent against the discriminatory impact of the PCP rather than their own legitimate aims.  The claim was submitted to a fresh Employment Tribunal to decide whether the discriminatory PCP was a proportionate means of achieving a legitimate aim. 

Whilst the full outcome of the case is therefore yet to be seen it is a stark reminder to employers to seriously consider the impact and the balance of their decisions when putting in place PCPs or refusing a flexible working request. Of course the employer does not have to agree a flexible working request but where the decision to refuse is discriminatory or unreasonable it may also lead to a constructive dismissal claim. Employers need to ensure that they follow the correct procedure when dealing with flexible working requests and ensure that their reasoning (as conveyed to the employee) is both reasonable and stands up to scrutiny as to whether it is based upon a PCP which ultimately results in a finding of indirect sex discrimination.