London Underground Limited v Edwards (No.2) Court of Appeal 21 May 1998

The Court of Appeal has held that London Underground indirectly discriminated against Susan Edwards, a single parent with a young child, when it introduced a shift system which made it impossible for her to continue in her employment and care for her children. In Issue 10 of LELR (Going Underground)we reported the decision of the Employment Appeal Tribunal in this case.

Susan Edwards worked for London Underground since 1983. She qualified as a train driver in 1987, her baby was born in the same year.

She was able, by swapping shifts with colleagues, to organise for herself a shift pattern in which she could accommodate her domestic and childcare arrangements. In 1991, London Underground had a re-organisation which involved a new shift work system.

The tribunal found as a fact that it was necessary for Susan to work during the day because she had sole care of her child and that under the new system it would have been more difficult for her to arrange any exchange of shifts. This would mean that she would have to work longer hours than previously. She was presented with the alternative of either signing an acceptance of the new roster or facing dismissal.

Susan Edwards' case proves how difficult it is to bring a claim of indirect sex discrimination and succeed. The woman affected, first of all has to prove that her employer applied a 'requirement or condition' which applied equally to a man. Susan Edwards complained of discrimination in the applying of a condition or requirement that made it impossible for her to continue in her employment.

The woman then has to prove that the proportion of women (or men) who can comply with the condition or requirement is considerably smaller that the proportion of men (or women) who can comply. Susan Edwards' case demonstrates that this is an evidential and statistical nightmare.

It took Susan Edwards two trips to both the Industrial Tribunal and the Employment Appeal Tribunal and one to the Court of Appeal to establish that the change in shift pattern at London Underground discriminated against her.

London Underground argued that since Ms Edwards was the only female train driver who could not comply with the new shift arrangements, the proportion of women who could comply with the arrangement was statistically 95%. The equivalent statistic for male train drivers was 100%.

This London Underground argued, was not sufficient to demonstrate that a considerably smaller proportion of women could comply with the new arrangement. Their argument ignored that fact that there were 21 female train drivers compared to over 2,000 male train drivers. The Court of Appeal confirmed that the Industrial Tribunal was entitled to look at the wider statistics of the gender pattern amongst train drivers.

The Judgment will assist in women arguing indirect sex discrimination in working patterns which are not family friendly where the appropriate pool for comparison is predominantly male. It does not assist however in areas where the workforce is predominantly female such as the health service.

Susan Edwards' case highlights the inherent difficulties in defining the relevant pool for comparison purposes and assessing the differential compliance rates required to prove disparate impact.

The Court of Appeal was not prepared to lay down a rule of thumb in relation to small percentage differences, as to what is 'considerably smaller'. In Susan Edwards case a 5% difference was enough. The Court of Appeal said that the IT was entitled to take into account the common knowledge of the high preponderance of single mothers having care of a child.