The Employment Appeal Tribunal (EAT) has examined whether a requirement for staff to work Saturdays was justifiable indirect discrimination against female employees when refusing flexible working requests.

The claimant was employed full time as a train driver/instructor. The respondent employed 559 train drivers with 17 of these women and, at the claimant’s station, there were 21 train drivers and 4 women. The drivers carried out shifts called “turns” which mostly required early, late and weekend working. Flexible working was rarely granted and accommodations for temporary variations to working hours were agreed with the workplace agreement committee; because of the makeup of the company this was dominated by male employees.

The claimant had three children and struggled with childcare from 2012. She requested an accommodation with Saturday as a rest day but was refused as it would deny other drivers family friendly hours. Further requests were denied until an accommodation was agreed in March 2013. This was withdrawn two months later due to complaints from drivers. Further accommodations were rejected due to reasons including: the additional costs, needing to meet customer needs, the impossibility of reorganising work and the refusal of colleagues to work extra.

In June 2014 the claimant accepted an accommodation to work four days. She brought claims for sex discrimination.

The Employment Tribunal (ET) found a provision, criterion or practice (PCP) applied which was “a requirement to be able to work over 50% of rosters and on Saturdays”. The ET observed that only 19.04% of train drivers at the Newcastle depot were female so it was apparent the PCP deterred females from driving roles because of caring responsibilities and the claimant herself was disadvantaged.

The ET found there was a legitimate aim of “providing train services as required by the franchise agreement and the need to balance the rights and needs of its workforce”. When determining if the PCP was a proportionate means of achieving this aim, the ET considered that, because the accommodation agreement system was dominated by males this failed to create a gender balanced workforce, and was not a proportionate means. Therefore, the claim of indirect sex discrimination succeeded.

The EAT found the ET had not erred in finding a discriminatory PCP. However, when deciding the justification defence, the ET had not considered the respondent’s legitimate aim and instead focused on their ideals of achieving a gender balanced workforce. The case was returned to a different ET to decide whether the requirement was a proportionate means of achieving both aims of running a service that fulfilled contractual obligations and balancing the workforce.

Lead Business Partner Alison Kirk found this case interesting: “I deal with lots of members who are not able to accommodate flexible working requests and, in the main, feel bad about it. They want to be able to help their employees out with the work-life balance but operational needs often override this. This case is good news for employers because it shows that the tribunals will take the needs of the business into consideration”