XC Trains Ltd v CD & Ors

For indirect sex discrimination, the comparative exercise under section 19 of the Equality Act 2010 may compare the proportions of women and men in the employer’s relevant workforce who can and cannot comply with the PCP. A small group of workers who have sought accommodation is not necessarily the proper pool.

A claimant need only show that the PCP puts her at the group disadvantage. She need not establish an inability to comply. In deciding justification, the tribunal must balance the discriminatory impact against the employer’s legitimate aims. It must assess any proposed alternatives on a factual basis, including their effect on other workers and cost.

The Claimant, a full-time train driver and instructor, alleged indirect sex discrimination arising from a requirement that drivers work more than 50% of rostered shifts and a number of Saturdays. The Employment Tribunal held that the requirement placed women, and the Claimant, at a particular disadvantage. It rejected the employer’s justification defence.

The employer appealed on the proper comparison pool, whether the Claimant had suffered the statutory disadvantage, and justification. The central issue was whether the Tribunal had correctly applied section 19 of the Equality Act 2010, particularly the proportionality defence in section 19(2)(d).

1. Appeal allowed on justification and remitted. The Tribunal’s findings under sections 19(2)(b) and 19(2)(c) of the Equality Act 2010 remained in force. Its decision on section 19(2)(d) involved an error of law.

2. The appropriate comparison was between the proportion of women drivers in the employer’s workforce who could and could not comply with the PCP and the corresponding proportion of male drivers. Comparing only the six drivers who had requested accommodation would not reveal the PCP’s comparative effect. The Tribunal had therefore correctly used the workforce statistics. Its additional observations about women’s caring responsibilities and under-representation did not vitiate that conclusion.

3. Section 19(2)(c) requires that the PCP puts, or would put, the individual claimant at the group disadvantage. It does not reproduce the former requirement under section 1(1)(b)(iii) of the Sex Discrimination Act 1975 that the claimant be unable to comply. The Tribunal’s unchallenged findings that the Claimant faced grave difficulty meeting her contractual obligations established her personal disadvantage, notwithstanding temporary and agreed accommodations.

4. Justification required a structured assessment. The Tribunal had to weigh the discriminatory impact of the PCP against the employer’s legitimate aims: providing the contracted train service and balancing the rights and needs of the workforce. Instead, it gave weight to its own aim of achieving a gender-balanced workforce. It also proposed alternative arrangements without a fact-based assessment of their feasibility, cost, or effect on other drivers. That was outside the required proportionality exercise.

5. The justification issue was remitted to a differently constituted Employment Tribunal. The anonymity order was continued.

• Employment Appeal Tribunal: allowed the employer’s appeal on the justification ground and remitted that issue to a differently constituted Employment Tribunal.
• Employment Tribunal: upheld the indirect sex discrimination claim under section 19 of the Equality Act 2010, including rejection of the employer’s justification defence. The lower decision was sent to the parties on 4 August 2015.