Flexible working: balancing an individual's request against the impact on the rest of the workforce

Author: Darren Newman

Darren Newman

Consultant editor Darren Newman considers a recent indirect sex discrimination case that highlights the problems that an employer can face when it has to balance the working-pattern requests of individual employees against the needs of the workforce as a whole, and its need to provide an effective service.

Indirect discrimination has never been an easy concept for the courts - or indeed the rest of us. The subject has not been made any easier by the fact that the definition itself has undergone several amendments over the years. Under the Equality Act 2010 what we now look for is a "provision, criterion or practice" that is applied to a group of employees and that causes those who share a protected characteristic to suffer a "particular disadvantage" - with it causing the same disadvantage to the individual claimant. The crucial difference between direct and indirect discrimination is the justification defence. Even if a provision, criterion or practice is shown to be indirectly discriminatory, the employer can defend a claim on the grounds that it is a "proportionate means of achieving a legitimate aim". There are many legal difficulties with the definition of indirect discrimination, some of which are due to be addressed by the Supreme Court later this year. However, the employee relations issues that can be thrown up by an indirect discrimination claim can be just as tricky.

We tend to think of the "classic" example of indirect sex discrimination as being the refusal of a flexible working request. This causes a particular disadvantage to women because they are statistically more likely than men to have caring responsibilities that make it difficult for them to work long or unsocial hours. In recent years there has been increased emphasis on the business benefits of flexible working and it has undoubtedly become harder for employers to justify a requirement for employees to work full time or to a particular pattern.

In XC Trains Ltd v CD, the employee was one of only 17 women employed as train drivers by the employer, out of a total of 559 train drivers. She was a full-time employee working 35 hours over a six-day week. The work pattern of a train driver can be fiendishly complicated, with work being required at weekends, early in the morning and late into the evening. The employee had three young children and when she separated from her husband in 2012 it became increasingly difficult for her to balance her work commitments and family responsibilities. She made a number of requests for flexible working, which were refused - although several temporary accommodations were made for her in terms of the shifts that she was allocated. One problem was that it was not possible for the employer to accommodate her needs without requiring the other - overwhelmingly male - drivers to agree to the change through the local bargaining framework. Since any accommodation for her involved the other drivers having to work more weekends and evenings, no agreement could be reached.

The employee brought an indirect sex discrimination claim, which was upheld by the employment tribunal. The tribunal found that the provision, criterion or practice - the requirement for a full-time train driver to work unsocial hours - put women at a particular disadvantage. Two female train drivers out of 17 had sought to change their working hours, whereas only four out of 542 male train drivers had done so.

On appeal, the Employment Appeal Tribunal (EAT) held that the tribunal had been entitled to make this finding. It was clear that in these circumstances the right test was to look at the relative proportions of men and women who faced a difficulty in working the standard pattern, even though the actual number of flexible working requests was very small. The EAT went further and said that the tribunal would also have been entitled to take into account evidence showing the extent to which women in general might be deterred from becoming full-time train drivers because of the need to work unsocial hours.

The key issue was justification. The tribunal accepted that the employer had a legitimate aim of running an effective rail service, but held that its insistence on employees working unsocial hours was not a proportionate means of achieving this. The tribunal was very concerned that there were so few women in the workforce and noted that the trade union would not agree to any arrangement that disadvantaged the overwhelmingly male train drivers. It said that, unless something was done to "break the cycle, one of the last male bastions [would] be perpetuated". Describing the local bargaining system as "outdated", the tribunal found that the employer had simply accepted the inevitability of the situation and had not tried to challenge the status quo.

However, the EAT held that this was the wrong approach. In deciding justification, a tribunal has to balance the business needs of the employer with the discriminatory impact of the provision, criterion or practice in question. In this case, the tribunal had failed to carry out that balancing exercise and had instead given priority to the need to achieve a gender-balanced workforce. It had given no weight to the need to run an effective train service, and had also ignored the other legitimate aim put forward by the employer - that of taking into account the rights and needs of other members of the workforce. There were just 21 drivers in the depot where the employee worked, so any adjustment to her working hours would have had an impact on the other drivers in the depot, who would have had to work more unsociable hours as a result. The issue was remitted to a fresh tribunal to consider the question of justification.

When the issue is reheard, it is likely to be the impact on other employees that is key. It is accepted that trains need to run at weekends and into the night, but the employer could surely have designed a working pattern that would have suited the employee's particular needs. However, the insurmountable problem was that other employees would then have had to work additional unsocial hours to compensate and they were not willing to agree to that. When talking about flexible working, we tend to gloss over the difficulties and think in terms of "win-win" solutions. Sometimes, however, flexible working is a zero-sum game.

Gender segregation of the workforce is clearly a problem, and a major contributor to the UK's persistent gender pay gap. Ultimately, solving that problem requires a fundamental shift in the traditional family roles assigned to men and women. For a change of that nature, we need to look to society as a whole, not an employer whose job is simply to make the trains run on time.