The Employment Appeal Tribunal (EAT), in the case of XC Trains Ltd v. CD and ASLEF and others, considered whether indirect discrimination arose when a train company rejected flexible working requests made by a train driver employee who was a single mother. The EAT upheld the earlier tribunal decision in part, holding that the requirement for employees to work rosters with anti-social hours and weekends put women at a particular disadvantage and therefore amounted to indirect sex discrimination.

However, importantly, the tribunal had failed to consider whether the provision, criterion or practice (PCP) that all drivers had to work at least 50% of rosters could be justified by the PCP being a proportionate means of achieving a legitimate aim. The case was remitted back to the Employment Tribunal to determine whether the PCP was proportionate to the legitimate aim of providing a rail service under the company’s franchise agreement and considering the rights and needs of the other rail workers.

What Should Employers Do Next?

When turning down flexible work requests, businesses will need to ensure that there are legitimate reasons for doing so, and should consider whether the legitimate needs they are seeking to rely upon outweigh the potentially discriminatory effect of any PCP.