When is it discriminatory to refuse a flexible working request?
In XC Trains Ltd v CD and Aslef & others, the Employment Appeal Tribunal (EAT) considered whether it was justified for an employer to refuse a female employee’s request for flexible working hours to help with childcare.
First, a quick recap on indirect discrimination…
Indirect discrimination happens when:
- An employer applies a provision, criterion or practice (PCP) generally to its workforce
- The employee has a protected characteristic
- This characteristic puts the employee (and others with that characteristic) at a particular disadvantage compared to others
- The PCP is not a proportionate means of achieving a legitimate aim (i.e. can’t be justified despite the discriminatory effect)
The Claimant in this case was a female train driver.
A practice, criterion or provision (PCP) for train drivers was they needed to work 50% to a rota and to work on Saturdays.
Initially, the Employment Tribunal (ET) agreed the PCP did put women and the Claimant at a disadvantage, so she was discriminated against.
The Employment Appeal Tribunal (EAT) overturned this.
They didn’t dispute the finding that women were at a disadvantage with the rota and Saturday working.
This was because statistical evidence of male (542) and female (17) train drivers had been obtained with a much higher percentage of these women having difficulties.
But they did say the ET hadn’t looked properly at the legitimate aims of the Respondent.
A PCP that puts a particular group at a disadvantage will not be discriminatory if it can be justified.
The EAT didn’t confirm whether it was justified, but reverted the question to a new Tribunal to decide.
What this means for you
It’s not certain to be made out that any flexible method of working automatically puts women at a disadvantage as the main childcare provider.
This is not an automatic assumption and does have to be proven for these particular employees, as it was in this case.
However, there are legitimate aims in having a flexible rota or refusing flexible working requests. And, in this case, to provide a proper train service and balance the rights and needs of its workforce.
The views of the workforce were particularly relevant in this case. Her colleagues were very unhappy that one full-time driver could work so-called family friendly hours, casting further anti-social hours on them.
Whether refusing to relax the rota or grant flexible working requests is the most proportionate way to deal with this matter has yet to be decided.
It’s unlikely an employer can always justify a requirement for everybody to work to a rota, and to not grant any flexible leave at all without good evidence.
The employer has to find the least discriminatory position, so it’s likely to involve some negotiation.
It’s legitimate to take the rest of the workforce’s views into account (actual not assumed views). But just remember to take action that is proportionate rather than absolute.
Need advice? Get in touch today
Please call Nathalie Stewart on 01482 324252.
You can find out more about our Employment Law services here.Return to the insights archive »
The content on our site is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content on our site.
Although we make reasonable efforts to update the information on our site, we make no representations, warranties or guarantees, whether express or implied, that the content on our site is accurate, complete or up-to-date.