XC Trains Ltd v CD & Ors (Sex Discrimination : Comparison) [2016] UKEAT 0331_15

THE HONOURABLE MRS JUSTICE SLADE DBE

1. XC Trains Ltd the First Respondent to claims by CD appeals from the Judgment of the Employment Tribunal, Employment Judge Buchanan sitting with members, Ms Winship and Mrs Pennie (“the ET”) sent to the parties on 4 August 2015. ASLEF was the Second Respondent to the claims. I will refer to the parties by their titles before the ET.

2. The Claimant, a train driver/instructor employed on a full time contract by the First Respondent, brought fifteen claims against the First Respondent and ten against the Second Respondent. The Claimant also brought claims against six individual Respondents. All claims were dismissed save for two against the Second Respondent which succeeded in part, three against the First Respondent and one against the Fifth and the Seventh Respondents.

3. This appeal is that of the First Respondent from a finding against them of indirect sex discrimination under Equality Act 2010 (“EqA”) section 19. The Claimant contended and the ET held that a requirement to be able to work over 50% of rosters and on Saturdays was a provision criterion or practice (“PCP”) which put women and her at a particular disadvantage. The ET further held that the First Respondent had failed to make out a justification defence.

4. At a Preliminary Hearing (“PH”) before the Employment Appeal Tribunal (“EAT”) Mr Justice Kerr ordered amended grounds of appeal 2, 3 and 4 only to proceed to a Full Hearing. All other grounds were dismissed. By ground 2 the First Respondent contends that the ET erred in their approach to the question of whether the PCP put women at a particular disadvantage within the meaning of EqA sections 19 and 23. By ground 3 the First Respondent contends that the conclusion of the ET that the Claimant was put at that disadvantage was perverse. By ground 4 the First Respondent contends that the ET erred in the application of the test as to whether the First Respondent could show that the PCP was a proportionate means of achieving a legitimate aim.

5. As may be appreciated from the large number of claims and Respondents the hearing before the ET occupied many days, about three weeks in total with further days for consideration. The Judgment and Reasons of the ET run to 102 pages. However the findings of fact and reasons relevant to this appeal form a small part of the judgment and will be set out in summary.

Summary of Relevant Facts

6. The Claimant commenced employment with the First Respondent on 6 January 1997 as a train driver. At the time of the hearing before the ET in 2015 she was working as a train driver/instructor. The Claimant was employed on a full time contract.

7. The First Respondent employs 559 train drivers of whom 17 are women. At all material times the Claimant was based at Newcastle train station where there are about 21 train drivers of whom 4 are women. After circulation of the draft Judgment, counsel for the Second Respondent and the Claimant have suggested changes to the numbers and percentages of men and women drivers at the Newcastle depot referred to in this Judgment. The figures referred to by the ET in paragraph 24.5 of their Judgment are different from those in the Conclusions section which includes paragraph 27.75. The ET based their decision that the PCP was indirectly discriminatory against women drivers on the figure of 21 and the percentage of 19.04% to 80.96% given in paragraph 27.75. These figures were not challenged in the Respondents’ Answers in the EAT or in the submissions made at the hearing of the appeal. In paragraph 7 of the skeleton argument for the EAT counsel for the Claimant states that “the Employment Tribunal did not err in its discussions at paragraphs 27.74-27.76”. The discrepancy between the figures in paragraphs 24.5 and 27.75 was not relied upon in the appeal to the EAT and has had no effect on its outcome. The figures of 21 and related percentages set out in paragraph 27.75 will be those referred to in this Judgment.

8. The ET held at paragraph 24.7 that the hours that drivers are required to work are determined by the timetable:

“24.7. The shifts that the drivers undertake are called “turns” and all the shifts that need to be covered are contained in … a “link”. The link will contain a number of “diagrams” which is a week long shift pattern. The practice is for drivers to rotate through the link week by week and so work a different diagram each week. …The majority of turns in a link involve some requirement to work either very early in the morning or late at night and some Saturdays and Sundays. There are only two turns out of some 25 in a usual link at the Newcastle depot which enable the driver to work so called “family friendly” hours which means shifts beginning and ending between the hours of 8am and 6pm.”

The ET recognised at paragraph 24.10 that:

“24.10. … Any permanent change to the contract of one driver is bound to affect the timetables of all other drivers on that same link. …”

9. In common with all other drivers the Claimant’s contractual duties are to work a 35 hour week over 6 days with daily working hours determined by the requirements of the depot but not less than five hours and not more than ten hours per day. There is also an obligation to work on rostered Sundays.

10. The ET held that applications for flexible working are regularly received by the First Respondent but rarely granted. Instead:

“24.10. … if possible, so called “accommodations” are reached with drivers which grant a variation to working patterns on a temporary basis …”

11. The Claimant has three children, one born in 2008 and twins in 2009. The Claimant and her husband separated in 2012 and child care became more difficult. The Claimant requested but was refused flexible working. She wished her weekday working hours to be between 8am and 6pm and not to work on Saturdays or Sundays. She was granted various accommodations for fixed periods of time.

12. The first request made by the Claimant for flexible working was a joint application with her partner on 6 April 2011. It was refused but an accommodation was granted. After the separation the Claimant asked for an accommodation of working 9am to 5pm with Saturday as a rest day. Such requests had to be discussed with the Local Level Committee, the “LLC”. The Newcastle LLC rejected the request. The Claimant was informed that:

“Unfortunately we were unable to come to an agreement with your requested days and times on the grounds that: it would unfairly deny other Newcastle drivers the same access to the only two family friendly diagrams as this would obviously be a long term requirement.”

The Claimant was effectively off sick from 6 September 2012 until April 2013.

13. On 11 September 2012 the Claimant applied for flexible working of hours between 6:30am and 6:30pm on weekdays and working one in two Saturdays with an early shift. The request was not granted. An agreement for an accommodation was reached on 27 November 2012 with Andrew Oakley, the Head of Drivers of the First Respondent, for an accommodation very similar to the flexible working request but the Newcastle LLC objected to it. The LLC recorded a failure to agree.

14. On 15 March 2013 a meeting with the Claimant took place which resulted in an agreement for an accommodation which provided for her to have Saturday rest days and to work the two family friendly shifts between Tuesdays and Fridays. This was to last until the next timetable change due on 19 May 2013. On 2 May 2013 the Newcastle LLC withdrew its agreement to the accommodation reached on 15 March 2013 because of a number of complaints from other drivers. The First Respondent agreed to grant the Claimant an emergency temporary accommodation.

15. Many meetings and discussions were held but the issue of flexible working for the Claimant was not resolved. The ET held that:

“24.85. On 20 May 2014 (but dated 12 May 2014) the claimant made a further flexible working request (pages 547-551). The request was for a 4 day week between Monday and Friday working between 8am and 6pm with no Saturday and no Sunday working. …”

The First Respondent offered an accommodation which had been agreed by the Newcastle LLC. This was:

“24.86. … an 8 week link and to work 4/8 Saturdays and Sundays. The Monday to Thursday shifts were as proposed by the claimant but the Friday shift was subject to one change from that proposed by the claimant.”

16. On 9 June 2014 the Claimant’s flexible working application of May 2014 was refused:

“24.93. … because of additional cost placed on R1 and because it would not allow R1 to meet customer needs and because the request would make it impossible to reorganise work requirements. …”

The Claimant was told that:

“Your colleagues have stated to me they will not work anymore contractual Saturdays … [or] … Sundays to accommodate your request.”

17. In June 2014 the Claimant accepted an accommodation which she has been working ever since. This has involved the Claimant working shifts on four days each week over an 8 week diagram.

The Decision of the ET

18. The ET held at paragraph 27.73 that the First Respondent applied a PCP, which was “a requirement to be able to work over 50% of rosters and on Saturdays”. This PCP was applied from 19 June 2013 at the latest.

19. The ET observed at paragraph 27.75 that the percentage of women train drivers to the total was 3.04%. At the Newcastle depot 19.04% of the drivers are women. They continued:

“27.75. … On the face of it, there is no reason why women should not be as well represented in the workforce as men. We are entitled to wonder and enquire why the position is as it is.”

20. The ET held at paragraph 27.76:

“27.76. … We have considered whether this PCP intrinsically disadvantages women and we conclude that it must given the stark statistics to which we refer above. Why is this so? We conclude that women are deterred from applying for driving roles because their caring responsibilities mean that they cannot comply with the PCP linked as it is to the shift system. … We decide that women do still have the overwhelming responsibility for the care of children particularly under school age …”

21. Having satisfied themselves that the PCP put women in general at a particular disadvantage, the ET considered whether it put women drivers within the First Respondent at a particular disadvantage. At paragraph 27.78 the ET held:

“27.78. … There are 17 women drivers and 2 have requested accommodations. That is 11.76% of female drivers who cannot comply with the PCP. There are 532 male drivers and 4 have sought accommodations. That is 0.75% of the total male workforce who cannot comply with the PCP. We conclude that it is clear that a higher proportion of female drivers (11.76%) than male drivers (0.75%) are unable to comply with the PCP and the shift system which underpins the PCP. We conclude that particular disadvantage to women as compared to men is made out when the matter is tested against the chosen pool.”

22. The ET held that the PCP placed the Claimant at a particular disadvantage. They held at paragraph 27.79 that when faced with the real possibility of being given notice the Claimant agreed to an accommodation which meant she had to work some Saturdays and some shifts which were out of normal working hours of 8am to 6pm. They continued:

“27.79. … We have no difficulty in concluding that the claimant faced particular personal disadvantage. The claimant was a single mother from April 2012 onwards of 3 children under the age of 5. She experienced grave difficulty in meeting her obligations under her contract which reflected the PCP. …”

23. In considering whether a justification defence was made out, the ET held at paragraph 27.80:

“27.80. … There can be no doubt that the provision of the rail service is a legitimate aim and the question therefore is whether the application of the PCP is a proportionate means to achieve that aim.”

24. The ET recorded that the argument advanced by the First Respondent was that the company:

“27.81. … required its drivers to work antisocial hours to provide the service it was contractually required to provide in recognition of which its employees commanded high salaries. …”

The ET commented on this justification:

“Indeed that is so, but why we ask are there so few women in that workforce?”

The First Respondent had entered into a collective bargaining agreement with the Second Respondent. This meant that no rosters could be agreed without the agreement of the relevant LLC or other higher authority. The ET held that it is apparent that the LLC would agree nothing which disadvantages the driver workforce which was male dominated. They held at paragraph 27.82:

“27.82. … They can hardly be criticised for that unless they are knowingly assisting acts of discrimination and there is no evidence of that. …”

However the ET went on to hold:

“27.82. … But unless something is done to break the circle, one of the last male work bastions will be perpetuated. …”

After observing that in the past the Police and Fire Brigade had used the same arguments to justify similar shift patterns the ET commented that over the last twenty years these shift patterns had changed “resulting in workforces much more reflective of the society which those services serve …”.

25. At paragraph 27.82 the ET held:

“27.82. … In essence the position of R1 is that the collective bargaining system means that “what we may wish to do, we are unable to do because of the attitude and stance taken by the existing male dominated workforce”. That may be so but that situation will perpetuate a male dominated workforce and it is the responsibility of R1 to show that in adopting that position, it is acting proportionately and we find that it is not. That is the risk R1 runs in accepting that the status quo of gender balance amongst the driver workforce cannot be altered. We conclude that the status quo can be altered and in not attempting to do so, R1 fails to satisfy us that it has adopted proportionate means to achieve the legitimate aim engaged in this matter. …”

26. The ET considered in paragraph 27.83 alternative shift arrangements which, in their view, could be compatible with women’s caring responsibilities while meeting the requirements of the Respondent to provide a train service. They held:

“27.83. … It is possible to conceive of many types of working arrangements which would remove or ameliorate the discriminatory effect of the impugned PCP and the very rigid shift system which underpins it and potentially, and in our view very likely, lead to a gender balanced workforce. … These and other methods have transformed the working practices and workforce gender balance of other large employers such as the Police and the Fire Service and there is no reason why they should not also do so with the driver workforce of R1. … The collective bargaining system which exists in this workforce is reflective of a system which would have been common 50 years ago and it perpetuates a workforce which in terms of gender balance has no place in the 21^st century. In failing to consider or adopt a method of working which would yield a more gender balanced workforce, we conclude that R1 is not adopting proportionate means to achieve the legitimate aim.”

27. Accordingly the ET upheld the claim of indirect sex discrimination.

Relevant Statutory Provisions

Equality Act 2010

“19. Indirect discrimination

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if -

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.”

“23. Comparison by reference to circumstances

(1) On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case.”

The Submissions of the Parties

28. By ground 2 of the Amended Notice of Appeal it is contended that the ET erred in their approach to the question of whether the PCP put women at a particular disadvantage within the meaning of section 19 read together with section 23 EqA 2010.

29. The finding of the ET in paragraph 27.73 that the PCP applied by the First Respondent was a requirement to be able to work over 50% of rosters and on Saturdays was not challenged.

30. Miss Thomas, counsel for the First Respondent, contended that the ET made a fundamental error in considering the claim of indirect sex discrimination. It was submitted that the ET diverted themselves from a proper approach to the issues by considering why more women did not become train drivers. This affected their decision on the appropriate pool and on the justification for the PCP.

31. Miss Thomas contended that the ET failed to pay regard to the nature of the claim made. The Claimant was not complaining that she was not appointed a train driver. She had been employed as a driver for many years. She was complaining that she was denied access to the benefit of being able to work family friendly hours whilst engaged on a full time contract. It was submitted that the ET relied upon a pool appropriate to a complaint about the PCP as a bar to recruitment as a driver, the imbalance in sex of those recruited and upon considerations which they considered applicable to justification of such a PCP on recruitment.

32. Miss Thomas relied in particular on the judgment of the House of Lords in Secretary of State for Trade and Industry v Rutherford (No 2) [2006] ICR 785 in which Baroness Hale held at paragraph 77 that one should not bring into the comparative exercise in determining disparate impact people who have no interest in the advantage in question. Counsel also relied upon the judgment of the Court of Appeal in Somerset County Council v Pike [2009] IRLR 870 in which Maurice Kay LJ at paragraph 15 cited Rutherford (No 2) in which Baroness Hale observed at paragraph 82:

“The common feature is that all these people are in the pool who want the benefit - or not to suffer the disadvantage - and they are differentially affected by a criterion applicable to that benefit or disadvantage. Indirect discrimination cannot be shown by bringing into the equation people who have no interest in the advantage or disadvantage in question …”

33. Miss Thomas contended that the claim at issue in these proceedings was like that in Rutherford (No 2), and was one of being denied a benefit. Counsel relied upon the judgment of the Employment Appeal Tribunal in Scotland in Hacking & Paterson and another v Mrs L M Wilson UKEATS/0054/09 in which Lady Smith held at paragraph 22 that being unable to accommodate child care arrangements with working full time and so being unable to continue working for the Respondents was a complaint of the adverse outcome of being denied a benefit to which the Claimant sought to be awarded. Miss Thomas relied upon paragraph 27 in which Lady Smith held:

“… In the circumstances of this case that means that the appropriate pool is such of the Respondents’ property managers as, at the relevant time, wanted flexible working to be available. Those who had no interest in flexible working ought not, for the reasons explained in Rutherford, to be included in the pool. …”

34. Applying those principles Miss Thomas submitted that by selecting a pool for comparing relative disadvantages caused by the application of the PCP within a pool which comprised the entire driver workforce of the First Respondent, the ET erred. Counsel submitted that the correct pool was those drivers who had sought accommodations, not to work to the requirements of the PCP. At paragraph 27.78 the ET accepted the evidence given by the First Respondent that six drivers had asked for accommodations of whom two were women and four men. The ET held that 11.76% of female drivers could not comply with the PCP and 0.75% of the male workforce. Miss Thomas pointed out that men as well as women asked for accommodations so that they could meet their childcare responsibilities.

35. Further, Miss Thomas contended that insofar as the ET considered the general working population of those who may wish to become train drivers as relevant to assessing whether women were put at a particular disadvantage the ET erred. The claim concerned what counsel contended was for access to a benefit for existing drivers and not appointment as a driver.

36. By ground 3 of the Amended Notice of Appeal the First Respondent contended that the conclusion of the ET that the Claimant was put at a disadvantage was perverse.

37. Miss Thomas submitted that the ET found that the First Respondent had given the Claimant accommodations. On the evidence from June 2014 the Claimant successfully worked a roster which included some shifts out of family friendly hours and which included Saturdays. Accordingly the Claimant had not been disadvantaged by the application of the PCP. She had been given an accommodation which worked for her.

38. By ground 4 of the Notice of Appeal the First Respondent submitted that the ET erred in the application of the test as to whether it could show that the PCP was a proportionate means of achieving a legitimate aim.

39. Miss Thomas contended that the ET failed to deal with the second part of the legitimate aim relied upon by the First Respondent. The ET recorded at paragraph 25.11 that the legitimate aim relied upon was:

“… providing train services as required by the franchise agreement and the need to balance the rights and needs of its workforce.”

However when the ET considered their decision on the justification defence in paragraph 27.81 they failed to refer to the second part of the legitimate aim upon which the First Respondent relied. It was submitted that the tensions amongst other drivers caused by allowing a full time driver to work only family friendly hours would be considerable and would cast additional anti social hours on others. This was not taken into account by the ET.

40. Counsel contended that the ET erred in its consideration of whether the PCP was a proportionate means of achieving a legitimate aim. Instead of weighing the legitimate aims of the First Respondent against the detriment to women applicants for accommodation, the ET asked themselves the wrong question. At paragraph 27.83 they asked what the First Respondent should do to remove the effects of the shift system and create a gender balanced workforce.

41. It was submitted that if the ET had undertaken the balancing exercise involved in considering whether the PCP was a proportionate means of carrying out a legitimate aim they would have had regard to the difficulties which would be caused by granting the Claimant’s request to work only family friendly shifts particularly in the smallest depot which is where she worked. The First Respondent had given her a reasonable workable accommodation.

42. It was said that none of the alternative ways of complying with the Claimant’s request which the ET considered in paragraph 27.83 would have achieved the legitimate aim of the First Respondent and removed the disadvantage of the PCP to the Claimant. Further Miss Thomas contended that the ET were wrong to observe in paragraph 27.83 that no case had been advanced sufficient to enable them to conclude that the cost of implementing permanent changes to shift arrangements would not have been proportionate. It was submitted that the finding of fact at paragraph 24.71 showed that increased cost would be incurred by reduced numbers of drivers on a Saturday. The ET recorded evidence that the driver manager:

“24.71. … knew that the potential cost [of the accommodation required by the Claimant] was prohibitive and that that proposal was effectively a non starter.”

43. Accordingly it was submitted by Miss Thomas that the ET erred in their approach to determining whether the PCP was a proportionate means of achieving a legitimate aim.

44. Miss Hogben for the Claimant submitted that the ET did not err in their approach to the question of whether the PCP, the ability to work over 50% of the shifts on the link or diagram and on Saturdays, put women drivers at a particular disadvantage when compared with male drivers. The ET considered the relative numbers and proportions of women to men in three groups. Two male drivers compared with four female drivers had applied for accommodation, a departure from the PCP that is 0.75% of the male workforce compared with 11.76% of female drivers. At the depot where the Claimant worked four of the twenty one drivers were women. That is 19.04% women compared with 80.96% men. The First Respondent employed five hundred and fifty nine train drivers of whom only seventeen were women. That meant that the percentage of women to the total was only 3.04%; 96.96% of the driver workforce was male.

45. Miss Hogben referred to the judgment of the House of Lords in Rutherford (No 2) in which Lord Nicholls held at paragraph 67 that a disadvantage led approach to the statistics may be appropriate. A very strong disparity of disadvantage would be an alert to the likelihood of objectionable discrimination. Counsel contended that there was such strong disparity in this case between the proportion of drivers of each sex who could not comply with the PCP.

46. Further, Miss Hogben relied upon the judgment of the Supreme Court in Chief Constable of West Yorkshire Police v Homer [2012] ICR 704 in which Baroness Hale at paragraph 14 referred to the change in the language used to express the test for indirect discrimination brought about by the EqA. Baroness Hale held that the change was intended to do away with earlier complexities involved in deciding who could and who could not comply with a PCP.

47. Miss Hogben contended that the pool of those drivers who had applied for accommodation was far too narrow to form a reliable base from which to decide whether the PCP was indirectly discriminatory. Whilst the pool is to be determined with regard to the particular PCP alleged to be indirectly discriminatory the ET was entitled to consider the wider picture.

48. Having found that the PCP put women at a particular disadvantage, Miss Hogben contended that the ET did not err in holding that it put the Claimant at such a disadvantage. They gave unassailable reasons in paragraph 27.79. They held that the Claimant experienced grave difficulties in meeting her obligations under her contract.

49. As for the challenge to the decision of the ET that the First Respondent had not established that the PCP was a proportionate means of achieving a legitimate aim, Miss Hogben emphasised that an ET is a tribunal of fact. They had made an assessment of the proportionality of the measure and reached a permissible conclusion.

50. Miss Hogben submitted that the ET had taken into account the legitimate aim which Miss Thomas said had been disregarded by the ET: the effect on other drivers of the granting the request made by the Claimant. They referred at paragraph 24.10 to the effect a permanent change to the contract of one driver would have on the timetables of all other drivers on that same link. Similarly the evidence of the effect of such a change was referred to in paragraph 24.23. The Third Respondent said that “unsociable hours was part of the job” and that “we would all like Saturdays off to go to the football”.

51. Counsel submitted that the cost of acceding to the request made by the Claimant had not been the main objection made by the First Respondent. The ET observed at paragraph 27.83 that they had received no evidence of the cost implications of giving the Claimant the accommodation she had requested. There would be some impact on the timetables of other drivers and requirement for spares on a Saturday and some overtime but the ET considered that there had been a lack of creative thinking in failing to accommodate the request. The ET appear to have taken into account the unwillingness of the First Respondent to accommodate the request made by the Claimant.

52. Accordingly Miss Hogben submitted that the ET did not err in their approach to whether the PCP put women at a particular disadvantage or in considering whether the PCP was justified.

53. Miss Callan for the Second Respondent referred to the applicable test under EqA section 19 for indirect discrimination. In a change from the previous legislation it is whether a PCP puts members of one sex at a particular disadvantage. As explained in paragraph 14 of Homer this was intended to simplify the test not to make it more difficult to satisfy.

54. The judgment of the EAT in Games v University of Kent [2015] IRLR 202 at paragraph 41 was relied upon to illustrate that whilst statistics are important evidence, other evidence may be relied upon to establish that a PCP has a disparate impact on members of one sex. Accordingly it was submitted that the ET were not prevented from looking at evidence other than statistics within the pool. Women bear the principal burden of child care. Counsel referred in her skeleton argument to chapter 4 of the Equality and Human Rights Commission’s Equality Act “Code of Practice on Employment” [2011] in support of this proposition.

55. Ms Callan submitted that as the pool of those who could not comply with the PCP was so small, only six individuals, it was appropriate for the ET to look beyond that pool for other evidence in order to determine whether it had a disparate impact.

56. Counsel contended that the ET considered both limbs of the justification advanced by the First Respondent: the requirement to provide the train service and the impact on other drivers of departing from the PCP. The ET did not err in their decision that the First Respondent indirectly discriminated against the Claimant in breach of EqA section 19.

Discussion and Conclusion

57. The First Respondent contends by ground 2 of the Notice of Appeal that the ET erred in their approach to the question of whether the PCP put women at a particular disadvantage within the meaning of EqA section 19 read together with section 23. The ET found at paragraph 27.73, and it is not challenged, that the PCP applied was that drivers be able to work at least 50% of the depot diagrams on a daily basis and on a number of Saturdays.

58. Baroness Hale explained in Homer the change in the test for indirect discrimination brought about by EqA. Baroness Hale held at paragraph 14:

“… It was intended to do away with the complexities involved in identifying those who could comply and those who could not and how great the disparity had to be. Now all that is needed is a particular disadvantage when compared with other people who do not share the characteristic in question. It was not intended to lead us to ignore the fact that certain protected characteristics are more likely to be associated with particular disadvantages.”

Applying this approach the EAT in Games held a paragraph 41:

“It follows that it was not necessary for the claimant, in order to establish particular disadvantage to himself and his group, to be able to prove his case by the provision of relevant statistics. These, if they exist, would be important material. But the claimant’s own evidence, or evidence of others in the group, might suffice. …”

59. Baroness Hale in Rutherford (No 2) held that in a case in which indirect discrimination in relation to the provision of an advantage was being claimed:

“… one should not be bringing into comparison people who have no interest in the advantage in question.”

In that case a man was claiming indirect age discrimination in being refused statutory protection from unfair dismissal and redundancy when he was over the age of 65. The House of Lords held that:

“76. … it matters not that there are other men and women who have left the workforce at an earlier age and are thus uninterested in whether or not they will continue to be protected. …”

The denial of statutory protection of which complaint was made did not bite until employees of either sex attained the age of 65. What was alleged was indirect discrimination in being denied such a benefit because more men than women worked beyond the age of 65. Baroness Hale explained:

“75. The advantage or disadvantage in question here is going on working over the age of 65 while still enjoying the protection from unfair dismissal and redundancy that younger employees enjoy. …

76. … it matters not that there are other men and women who have left the workforce at an earlier age and are thus uninterested in whether or not they will continue to be protected. The people who want the protection are the people who are still in the workforce at the age of 65. And the rule has no disproportionate effect upon any particular group within that group. It applies to the same proportion of women in that group as it applies to men. …”

60. In this case the PCP applied to those who requested flexible working arrangements. Six drivers, four male and two female, applied for accommodations to be permitted to work other than in compliance with the PCP. I do not accept the submission made by Miss Thomas that the ET erred by considering the proportion of women drivers who could not comply with the PCP compared with the proportion of men rather than simply comparing the number and proportions of women to men in the pool of those who could not comply with the PCP: two to four, 33.3% to 66.6%. Considering the base numbers of each sex who could not comply with the PCP would not assist in determining whether it puts members of one sex at a particular disadvantage. If there were ten women drivers in the workforce of whom five applied for accommodations and two hundred men drivers of whom ten applied for accommodation the ratio of five to ten would give an erroneous impression of the comparative effect of the PCP on women drivers and male drivers. As in Rutherford (No 2) the correct comparison is the proportion of women drivers in the First Respondent’s workforce who can and cannot comply compared with the proportion of male drivers who can and cannot comply. This was the approach decided upon by the ET. At paragraph 27.77 they held:

“27.77. … we conclude it is appropriate to test the particular disadvantage in question across the whole driver workforce of R1. …”

EqA section 23 provides that making comparison for the purposes of section 19 there must be no material difference between the circumstances relating to each case. By their comparison in paragraph 27.77 the ET applied EqA section 23.

61. Whilst the ET made some general observations in paragraphs 27.75 and 27.76 about women’s caring responsibilities and why they were under represented in the workforce of drivers employed by the First Respondent, when they came to decide whether the PCP put female drivers at the First Respondent at a particular disadvantage they considered the percentage of the female driver workforce who could not comply with the PCP compared with that percentage of male train drivers. This was the correct set of statistics against which to test whether the PCP put women drivers at a particular disadvantage when compared with men.

62. In my judgment as they explained in paragraph 27.77 the ET based their decision on EqA section 19(2)(b) on the proportions of women drivers employed by the First Respondent who could and could not comply with the PCP compared with those of male drivers. Even if the ET had placed some reliance on their observations in paragraph 27.76 about the caring responsibilities of women and the possible effect of these work schedules operated by the First Respondent on women applying to become drivers, in my judgment this would not vitiate their conclusion in paragraph 27.78. As Baroness Hale observed in Homer the new formulation of indirect discrimination in EqA was not intended to lead to disregarding the fact that certain protected characteristics are more likely to be associated with particular disadvantages.

63. As for ground 3 of the Notice of Appeal, the statutory test for indirect discrimination no longer requires a Claimant to show that a PCP is to her detriment because she cannot comply with it as was provided in Sex Discrimination Act 1975 section 1(1)(b)(iii). EqA section 19(2)(c) requires her to show that the PCP puts “or would put, B at that disadvantage”.

64. The ET considered at paragraph 27.79 whether the PCP put the Claimant at a particular disadvantage. They noted that from 2012 onwards she was a single mother. She had three children under the age of five. The ET held that the Claimant experienced grave difficulty in meeting her obligations under her contract which reflected the PCP. She had employed child carers and latterly full time nannies but even with that assistance she was still unable to meet the requirements of the PCP and so had to rely on the help of her mother without whose assistance she would have been unable to carry on working.

65. The Claimant had been working the accommodation put in place in June 2014. The ET held at paragraph 24.97 that was:

“24.97. … the claimant working shifts on four days each week over an 8 week diagram. Shifts are worked on four days each week but across the diagram the claimant works every day between Monday and Saturday. The claimant works 4 Saturdays in 8 and 4 Sundays in 8. Excluding Sundays, over the whole 8 week diagram the shifts begin as early as 5am on 16 occasions and on 2 occasions at 2pm meaning a finish time of 10.45pm.”

By ground 3 of the Amended Notice of Appeal the First Respondent contends that the conclusion of the ET that the Claimant was put at a disadvantage by the PCP was perverse because they had put in place a number of temporary accommodations and from June 2014 she had been working that agreed accommodation. Further in the course of proceedings the Claimant had offered to work a roster which included Saturday working.

66. None of the facts upon which the ET based their decision in paragraph 27.79 are challenged. The decision that the PCP placed the Claimant in great difficulty in meeting her obligations under the contract is unassailable. That difficulty is a particular disadvantage which, different from that in the Sex Discrimination Act 1975, is the test to be applied when considering EqA section 19(2)(c). In my judgment the conclusion of the ET that the PCP put the Claimant at the particular disadvantage cannot be said to be perverse.

67. Miss Thomas rightly submitted that although at paragraph 25.11 the ET correctly identified the two legitimate aims of the First Respondent in applying the PCP: providing train services required by the franchise agreement and the needs of the workforce, when they came to decide the issue of justification in paragraphs 27.81 and following, the ET failed to refer to the second part of the legitimate aim. The ET did not hold that the second aim advanced by the First Respondent was not legitimate and referred in paragraph 27.81 to the legitimate aim advanced by Miss Thomas in her written submissions. However, in my judgment the failure of the ET to expressly refer to the second part of the legitimate aim of the First Respondent in their reasoning on justification indicates that they did not have it in mind when taking their decision.

68. The Supreme Court in Homer emphasised the need for Employment Tribunals to take a structured approach to the question of justification. Baroness Hale held:

“24. Part of the assessment of whether the criterion can be justified entails a comparison of the impact of that criterion upon the affected group as against the importance of the aim to the employer. …”

Baroness Hale explained at paragraph 24 that the answer to the question of whether the PCP was reasonably necessary in order to achieve the legitimate aims of the employer depended to some extent upon whether there were non-discriminatory alternatives available.

69. I accept the submissions made by Miss Thomas that the references by the ET to the importance of a gender balanced workforce and to designing work patterns so that this would be achieved indicate that they had in mind that objective rather than that required by EqA section 19(2)(d), explained in Homer, balancing the discriminatory effect of the PCP against the First Respondent’s legitimate aims. Indications of this error in approach are the reference in paragraph 27.83 to methods of working the ET suggest as having:

“27.83. … transformed the working practices and workforce gender balance of other large employers such as the Police and the Fire Service and there is no reason why they should not also do so with the driver workforce of R1. …”

Further, the ET observed that the collective bargaining system which perpetuates a workforce which in terms of gender balance has no place in the 21st century.

70. The sociological observation of the ET was given weight in their decision on justification. Their decision was made without balancing the discriminatory effect of the PCP against the legitimate aims of the First Respondent to run a train service fulfilling their contractual obligations under their franchise and the rights and needs of the workforce. There was no consideration of the times of day during which the First Respondent was required to run trains and that it had to do so on both days of the weekend. The ET accepted that giving the Claimant family friendly hours would have an effect on the other drivers at the Newcastle depot. The Newcastle depot was small with twenty one drivers. The Claimant wished to continue to be employed and be paid as a full time driver yet the change in her hours would mean that the other drivers would have to work more anti-social hours including more weekend working.

71. In my judgment categorising of LLC which represented the drivers as “an outdated bargaining system” which perpetuates a non gender balanced workforce without considering whether its objections to a change which would adversely affect the working patterns of other drivers were reasonable fell outside the scope of the exercise which the ET should have undertaken in considering EqA section 19(2)(d).

72. The ET posited arrangements which they described as “examples of the creative thinking which could remove the discriminatory effect of the PCP”. The ET failed to consider the legitimate aim of balancing the rights and needs of the workforce in relying on working patterns which would have an impact on drivers. Patterns “which do not recognise weekends”, those “offering permanent shifts at extreme ends of the working day and permanent weekend shifts” would all limit the range of shifts available to other train drivers. The other suggestion, “use of bank” staff would necessarily incur increased cost. The ET made no fact-based assessment of their suggestions nor did it conduct the required exercise of balancing the importance of the legitimate aim against the discriminatory effect of the PCP. Miss Thomas pointed out that the ET did not take into account when suggesting a job share solution the evidence that the Claimant had rejected a job share arrangement and wished to continue to be employed and be paid as a full time driver.

73. In my judgment, the ET erred in law by failing to weigh the legitimate aims of the First Respondent, rather than their own, however laudable, aim for the company of a gender balanced workforce, against the discriminatory impact of the PCP. Further the ET erred in law in positing means of removing the discriminatory effect of the PCP without considering whether there was a factual basis for their suggestions and their effect on other drivers.

Disposal

74. The ET did not err in holding that the PCP requiring drivers to work 50% of the rosters and on Saturdays was one that fell within EqA section 19(2)(b) and that it put the Claimant at a disadvantage within the meaning of EqA section 19(2)(c).

75. The ET erred in law in its approach to the decision as to whether the PCP was a proportionate means of achieving a legitimate aim within the meaning of EqA section 19(2)(d).

76. Accordingly the appeal is allowed on ground 4.

77. The claim is remitted to an Employment Tribunal to decide whether the discriminatory PCP was a proportionate means of achieving a legitimate aim.

78. Miss Thomas submitted that if the appeal on ground 4, justification, were allowed, the claim should be remitted to a differently constituted ET. Miss Hogben and Ms Callan submitted that it should be remitted to the same ET for reason of proportionality and cost.

79. The decision of the ET and related findings of fact that the PCP puts women at a particular disadvantage and that it puts the Claimant at that disadvantage remain in place. I am conscious that the hearing before the ET occupied three weeks and that they gave a detailed judgment running to one hundred and two pages on many claims. However they did not make all relevant findings of fact or take into account relevant considerations on the issue of justification. They also took into account an irrelevant consideration, an aim which was not one of those advanced by the First Respondent. For these reasons the question of whether the First Respondent has shown that the PCP requiring drivers to work 50% of their rosters and on some Saturdays is a proportionate means of achieving a legitimate aim is remitted to a differently constituted Employment Tribunal.

Anonymity Order

80. The names of the Claimant and the First Respondent had been anonymised. Miss Hogben applied at the outset of the appeal for the anonymity order to be continued. Counsel stated that the Claimant’s former partner and father of her children had been given a police caution and put on the sex offenders’ register. The eldest child had emotional difficulties. The identification of their father would be likely to be harmful.

81. Having regard to these matters and balancing Article 8 and Article 10 of the European Convention on Human Rights, I continued the anonymity order preventing the identification of the Claimant and the First Respondent.

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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> XC Trains Ltd v CD & Ors (Sex Discrimination : Comparison) [2016] UKEAT 0331_15_2807 (28 July 2016) URL: http://www.bailii.org/uk/cases/UKEAT/2016/0331_15_2807.html Cite as: [2016] UKEAT 0331_15_2807, [2016] UKEAT 331_15_2807

United Kingdom Employment Appeal Tribunal