A provision, criterion or practice operated by employers may not always be discriminatory


XC Trains v D (EAT)

This case confirmed that a provision, criterion or practice (PCP) operated by employers, may not be discriminatory if it is a "proportionate means of achieving a legitimate aim".

D, a single mother with three young children, was employed by XC Trains as a train driver. 3% of the employer's train drivers were female. XC Trains operated a rota system which included anti-social hours and weekends, and had a history of rejecting flexible working requests. D brought a claim for indirect sex discrimination on the grounds that the rota was a PCP which indirectly discriminated against female employees. The ET found in D's favour, and XC Trains appealed.

On appeal, the EAT found that the ET had not followed the correct approach. The ET's approach had focused on the aim of attaining a "gender-balanced workforce" and the tribunal was critical of XC Trains for not doing more to remove the discriminatory effects of the PCP. The EAT agreed that the PCP put women at a disadvantage but the correct approach should have been to consider whether XC Train's aims were legitimate, and whether the PCP was a proportionate means of achieving those legitimate aims. XC Trains claimed that the PCP was proportionate to the aims of running a successful train service and to protect the rights and needs of all members of its workforce. The EAT did not express a view on whether the PCP was discriminatory or not and remitted the claim back to a freshly constituted ET for consideration.

Employers should be aware that whether a PCP is discriminatory or not will depend on whether the PCP can be demonstrated to be a proportionate means of achieving a legitimate aim. In addition, when considering flexible working requests, employers should be mindful of the context and the characteristics of the specific individual making the request, and contemplate whether refusal can be justified in line with the approach suggested by the EAT above.

This article is part of our Employment Law Update for September 2016