Indirect sex discrimination: one step forward, two steps back?

A female train driver has won part of her battle against inflexible rostering arrangements by securing an EAT ruling that they had put her at a particular disadvantage as a woman, and therefore could potentially amount to indirect sex discrimination. However her employer has been given an opportunity to re-run its justification defence before a new employment tribunal.

This latest decision – which has echoes of a well-known dispute between Susan Edwards and London Underground 20 years ago – throws a spotlight on the difficulty the transport sector can face in accommodating requests for family-friendly hours.

In Ms Edwards’ day there were only 21 female train drivers on London Underground, as compared with over 2000 men. The facts of this case show a significantly improved but still hardly impressive ratio: 17 women out of a total of 559 drivers at a rail franchise operating in North East England. However the difficulties of accommodating flexible working requests from single parents with childcare responsibilities (still predominantly women) remain.

In Ms Edwards’ case it was a change in rostering arrangements which caused her difficulties. She had previously been able to swap shifts covering anti-social hours with male colleagues, who were attracted by the higher rate of pay that had been on offer. 20 years on, despite the advantage of the formal procedures for requesting flexible working - introduced in 2002, too late to help Ms Edwards – a permanent solution could still not be found.

The EAT has agreed with the tribunal’s analysis of the disadvantage the claimant in this latest case faced as a woman. It had been entitled to take into account the fact that 2 out of 17 female drivers had difficulties accommodating the shift pattern, compared to a much lower ratio of just 4 out of over 500 male drivers. Where the tribunal went wrong, however, was in failing to listen carefully enough to the employer’s justification defence. Instead of engaging with its argument that allowing the claimant to opt of night and week-end working would have a detrimental effect on other staff, the tribunal had impermissibly focused on the need to improve the gender balance in one of the last “male work bastions”.

In short, this decision sends two contrasting but not necessarily contradictory messages about indirect sex discrimination. First, it is true that despite a number of legal changes, progress to increase the representation of women in certain sectors and occupations remains slow. However, when assessing an employers’ justification defence, employment tribunals should weigh any disadvantage to women against the employers’ legitimate aims, rather than any broader political objectives about improving gender balance in UK workplaces.

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