Refusing flexible working requests
The Employment Appeal Tribunal overturned an employment tribunal’s decision that an employer who refused an employee’s flexible working request had indirectly discriminated against her on grounds of sex.
The Employment Appeal Tribunal overturned an employment tribunal’s decision that an employer who refused a train driver's flexible working request had indirectly discriminated against her on grounds of sex. Although the employment tribunal had been correct to find that the employer's requirement of weekend working was potentially indirectly discriminatory, it had failed to consider the employer’s justification arguments properly. In particular, it had failed to balance the discriminatory effect of the requirement against the employer's legitimate aims of providing a train service as required by its franchise agreement and of balancing the needs and rights of its driver workforce.
In XC Trains Ltd v CD, CD was a train driver. All drivers were contractually required to work 35 hours a week over six days. XC Trains regularly received flexible working requests but rarely granted them and instead reached “accommodations” which varied working patterns on a temporary basis. When CD separated from her husband, child care became more difficult. She made various flexible working requests, seeking a permanent change to her contractual hours. All her requests were refused, although she was granted various accommodations for fixed periods of time. She sought greater flexibility but this impacted on other drivers who refused to work any more weekends to accommodate her request. Her request was refused.
She claimed indirect sex discrimination.
The employment tribunal upheld her claim. Her employer had applied a provision, criterion or practice (PCP) of being able to work over 50% of rosters and on Saturdays. This put women at a particular disadvantage and put CD as this disadvantage. XC Trains argued that the PCP was justified as a proportionate means of achieving its legitimate aims of providing a train service as required by its franchise agreement and of balancing the needs and rights of its workforce. The employment tribunal disagreed. It was influenced by the small number of women drivers in XC Trains’ workforce and suggested other ways in which it could have accommodated CD and improved the gender balance of its workforce.
XC Trains appealed to the Employment Appeal Tribunal (EAT).
The EAT agreed with the employment tribunal that the PCP of being able to work over 50% of rosters and on Saturdays put women and CD at a particular disadvantage but upheld XC Trains’ appeal on justification. The employment tribunal had failed to balance the discriminatory effect of the PCP against XC Trains’ legitimate aims (rather than its own of improving gender balance in the workforce) and had given insufficient weight to the adverse effects accommodating CD in the ways it posited would have on other drivers.
It remitted the case to another employment tribunal to consider the question of justification again.
Employees with 26 weeks’ service have the right to request flexible working. This is a right to request a change in contractual hours. The employer does not have to agree. The grounds on which an employee can challenge their employer’s refusal of their request under the statutory scheme are limited and are essentially limited to cases where the reason does not fall within one of the permitted grounds or the decision was based on incorrect facts. This case acts as a reminder that an employee whose flexible working request has been refused may also bring an indirect sex discrimination claim. Employers who refuse such a request will therefore need to consider whether they can justify their refusal. This involves considering the business aims they are seeking to achieve and whether there is an alternative, less discriminatory, way of achieving these aims.
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