Under Section 19 of the Equality Act 2010, a female employee will succeed in a claim of indirect sex discrimination if she can show that her employer has applied a workplace provision, criterion or practice (PCP) that puts women at a particular disadvantage compared with male employees, that she personally has been so disadvantaged and that the employer cannot demonstrate that the PCP is a ‘proportionate means of achieving a legitimate aim’.

In XC Trains Limited v CD and Another, the Employment Appeal Tribunal (EAT) agreed with the finding of the Employment Tribunal (ET) that a PCP applied by the train company to drivers working out of its Newcastle depot, whereby they were required to be available to work at least 50 per cent of the daily shift patterns that needed to be covered and on a number of Saturdays, was one that put female drivers, including the claimant, at a particular disadvantage. However, the ET had erred in law in deciding on the justification issue.

The claimant was employed to drive trains on a full-time contract. After she and her husband separated, she had made several requests for flexible working in order to make it easier to arrange care for her three children. Although she was granted various temporary accommodations to enable her to work more sociable hours, her request for a permanent flexible working arrangement was not granted and XC Trains received a number of complaints from other drivers because her revised shift pattern resulted in them having to work more Saturdays and Sundays.

Having decided that the shift pattern underpinning the PCP put women in general and specifically the claimant at a particular disadvantage, the ET had gone on to focus on why there were so few women train drivers working for XC Trains (17 out of 559 drivers employed by the company overall and four out of 21 based in Newcastle) and concluded that the reason was a failure to adopt methods of working that would result in a more gender balanced workforce, such as those adopted by other large employers like the Police and the Fire Service. Although it had correctly identified the employer’s legitimate aims as providing the train services required by the franchise agreement and meeting the needs of the workforce, the EAT found that the ET had failed to take into account the second of these aims in its reasoning on justification.

In such cases, a structured approach to the question of justification is needed, as was emphasised by the Supreme Court in Chief Constable of West Yorkshire Police v Homer. The ET had erred in law by failing to weigh the legitimate aims of the employer (rather than its own aim of achieving a gender balanced workforce) against the discriminatory impact of the PCP. Furthermore, the ET had erred in law in suggesting ways of removing the discriminatory effect of the PCP without considering whether these were based on fact and their effect on other drivers.

The case was remitted to a differently constituted ET to decide whether the discriminatory PCP was a proportionate means of achieving a legitimate aim.