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Justifying Indirect Discrimination
Direct discrimination occurs where a person is treated less favourably than others would be treated on the basis of a protected characteristic, such as their age, disability or sex.
Indirect discrimination is a little more difficult for employers to address. Indirect discrimination can take place without any intention to discriminate, and will arise where an employer applies a provision, criterion or practice (PCP) which is discriminatory in relation to a person’s protected characteristic. A PCP will be discriminatory if:
- It would also apply to those who do not share the person’s protected characteristic
- It would put persons who share the protected characteristic at a particular disadvantage when compared to those who do not share it
- It would put the person at that disadvantage; and
- It cannot be shown to be a proportionate means of achieving a legitimate aim
It is not possible for employers to justify direct discrimination, but it is possible to justify indirect discrimination if an employer can show that the PCP that has been put in place is a proportionate means of achieving a legitimate aim.
But how should the legitimate business aim of the employer be balanced with the discrimination arising as a result of a PCP being applied?
XC Trains Limited v CD and Aslef and Others 
In the recent claim of XC Trains Limited v CD and Aslef and Others, the Employment Appeal Tribunal was given the chance to address this question.
The employee was a single mother with three children under the age of five. She found it difficult to meet her childcare requirements as well as fulfilling her obligations under her full-time employment contract as a train driver/instructor. She was one of 17 women out of 559 train drivers working for XC Trains Limited at that time. The employee’s contractual hours were 35 hours over 6 days per week, along with the rest of the drivers.
XC Trains Limited had applied a PCP whereby it required its workforce of train drivers to work at least 50% of their rosters, and they were also required to work on a number of Saturdays and Sundays.
The employee made various flexible working requests as she wanted to work family friendly hours between 8:00am and 6:00pm. Eventually, in June 2014, the employee accepted a variation to her hours which meant she was working 4 days per week.
She pursued a claim that the PCP applied by XC Trains Limited was indirectly discriminatory on the grounds of her sex, and the EAT agreed that this did amount to indirect discrimination on the basis it disadvantaged women given the higher percentage of the female workforce that was unable to comply with the PCP when compared to the male workforce.
The EAT considered whether the PCP was a proportionate means of achieving a legitimate aim. In this case the PCP applied to those making flexible working requests to allow for child care.
The EAT held that the correct way to address the issue of whether discrimination can be justified is to weigh the legitimate aims of the employer against the detriment suffered by women who were unable to comply with the PCP. Instead of this, the Employment Tribunal had considered what the employer could do to remove the effects of the shift system and create a gender balanced workforce. This approach was incorrect.
Guidance for Employers
Employers should always be wary that the introduction of a policy across the workforce may subject some employees to detriment as a result of their personal circumstances even if that was not the intention nor a concern that, that could have been foreseen.
Any policies requiring employees to work fixed shift patterns should be avoided where possible, and employers should consider carefully whether the same aim cannot be achieved in a more flexible way. Employees have the right to request flexible working, and whilst such requests can be rejected for genuine business reasons, they should all be considered on an individual and fair basis.
Employers should consider consulting with employees before introducing a new policy in an attempt to avoid inadvertent indirect discrimination taking place. This should seek to highlight any potential disadvantages that might be suffered by employees, and give employers the chance to address such concerns.
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