Hello and welcome back to another, slightly later than planned, weekly case law update. Last week’s newsletter had features on the gig society and a guide to summer HR issues. This week we will be examining sex discrimination and weekend working.

Today’s question:

Does a Provision Criterion or Practice [PCP] that requires all staff to be able to work 50% of rosters and work Saturdays indirectly discriminate against women?

The Claimant, referred to as CD, was a train driver and instructor, with nearly 20 years’ service, for XC Trains (Cross Country to me and you), the Respondent. The Respondent employed 559 drivers, of whom 17 (3%) were women. At the Claimant’s local train station there were 21 drivers of which 4 (19%) were women.

The Respondent had a history of rejecting flexible working requests and instead agreeing accommodations with staff to vary their working hours on a temporary basis. The Claimant was married with three young children, however, she separated from her husband and childcare became difficult. She submitted a flexible working request to work 8-6, Monday-Friday.

The Respondent rejected this request as the shifts were rotated to allow all drivers access to the family friendly hours and granting the Claimant flexible working would limit other driver’s access to family friendly shifts. Furthermore, if no other drivers were willing to cover the Claimant’s weekend shifts then the Respondent would not be able to meet its customer’s needs.

The Claimant proceeded with an indirect sex discrimination claim stating that the PCP for Saturday working put women at a particular disadvantage. The ET allowed her claim stating that the Respondent employed a disproportionate amount of men compared to women.

It held that this appeared to be due to the Saturday working PCP. It cited that, in the past, many other employers, such as the Emergency Services, had similar PCPs and a gender imbalanced work forces but had managed to rectify this.

The Respondent appealed and the EAT allowed the appeal. It held that whilst the PCP did put women at a disadvantage the Respondent was obliged to provide an all week service to its customers. The case was remitted to a fresh tribunal.

The takeaway point:

A PCP that requires weekend working can be discriminatory but the nature, needs and size of the Respondent’s business will determine whether it is. In this case the Respondent’s business operations meant allowing staff to work family friendly hours would be both impractical to its customers and unfair to other staff. However it has been remitted to a fresh tribunal so may yet be found to be discriminatory.