Indirect discrimination occurs when an employer applies a provision, criterion or practice (PCP) which discriminates against a worker in relation to a protected characteristic, unless it can be justified. In XC Trains Ltd v CD and ors, the Employment Appeal Tribunal (EAT) held that tribunals must balance the discriminatory effect of the PCP on the worker against the legitimate aim of the employer when deciding on justification.
The claimant, known only as CD, worked full time for XC Trains Ltd as a train driver/instructor. In common with all other drivers, she was required to work 35 hours per week over six days with daily working hours determined by the requirements of the depot. She also had to work on rostered Sundays.
After separating from her husband in 2012, CD (who had three children) asked on a number of occasions to work flexibly. The company refused her specific request not to work Saturdays and Sundays but agreed a number of temporary accommodations with her. CD claimed indirect sex discrimination.
The tribunal agreed that a requirement to work over 50 per cent of rosters and on Saturdays was a PCP which put women at a particular disadvantage as almost 12 per cent of female drivers could not comply, compared to 0.75 per cent of men. Given that women constituted just over three percent of the company’s workforce overall, the tribunal concluded that women were being deterred from applying to be drivers because their caring responsibilities meant they could not comply with the PCP.
It then considered whether the PCP put CD personally at a disadvantage and found that “she experienced grave difficulty in meeting her obligations under her contract which reflected the PCP. …”
Although the company had a legitimate aim (the provision of a rail service), the tribunal held that the application of the PCP was not a proportionate means to achieve the aim. Other large employers, such as the police and the fire service, had transformed their working practices (with a resultant improvement in the gender balance of their workforces) and the rail company could not therefore justify their failure to overhaul what was effectively an outdated collective bargaining system.
The EAT held that the tribunal was right to consider the effect of the PCP across the company’s entire driver workforce. It had therefore used the correct set of statistics against which to test whether the PCP put women drivers at a particular disadvantage when compared with men.
In relation to justification, the EAT had regard to the decision of the Supreme Court in Chief Constable of West Yorkshire Police v Homer which emphasised the need for tribunals to take a structured approach to the question of justification. This involved balancing the discriminatory effect of the PCP against the company’s legitimate aims - to run a train service fulfilling their contractual obligations under their franchise and the rights and needs of the workforce.
The EAT concluded that the tribunal had exceeded the scope of the exercise it should have undertaken when it categorized the company’s bargaining system as “outdated”. Instead it should have considered whether the company’s objections to a change which would adversely affect the working patterns of other drivers were reasonable.
The claim was therefore remitted to the tribunal to decide whether the discriminatory PCP was a proportionate means of achieving a legitimate aim.