Can the refusal of a flexible working request amount to discrimination?
As of 30 June 2014, the right to request flexible working was extended to all employees with 26 weeks service, not just those with caring responsibilities. As the volume and breadth of the requests have risen, can the inevitable refusal of a flexible working request amount to discrimination? This was considered in the case of XC Trains v CD. Here, the Employment Appeal Tribunal (EAT) had to decide whether a female train driver had suffered indirect sex discrimination by her employer requiring her to work over 50% of rosters and on Saturdays. She claimed this policy particularly disadvantaged women and therefore amounted to indirect sex discrimination.
- The claimant (anonymised as CD) was a full time employee working 35 hours a week over a six day week. Her shifts included early mornings, late nights and weekend hours.
- Only 17 out of 559 drivers employed by the train company were women.
- The claimant had 3 young children and, after separating from her husband, found it difficult to balance her work schedule and her family responsibilities.
- Although temporary arrangements were put in place for specific shifts, XC Trains refused the claimant’s flexible working requests (which involved not working early or late shifts and not working on the weekends).
The Employment Tribunal (ET) asserted that the required shift pattern did put women at a disadvantage and upheld the claim of indirect sex discrimination. XC Trains appealed.
The EAT agreed that the requirement to work unsociable hours did put women at a particular disadvantage but found the ET failed to properly consider the justifications submitted by XC Trains. In this instance, the train company said it was justified in refusing the application because it had an obligation to provide a seven day train service and allowing staff to work family friendly hours would be impractical and unfair to other staff. The appeal was therefore allowed and the claim was remitted to a fresh ET to decide whether the shift pattern (the discriminatory policy in question) could be objectively justified.
So, to answer the question, can the refusal of a flexible working request amount to discrimination, the short answer is ‘yes’ it can be. However, an employer can avoid liability for indirect discrimination if it can justify the refusal. Employers should therefore deal with flexible working requests in a reasonable and sensitive manner and give proper consideration to each request, ensuring the justifications of any refusal are carefully considered and documented fully.