In a decision from March, the Employment Tribunal has published its judgement following a sex discrimination claim brought against London Underground.   

Nicola Jones, an employee with the Underground since 2001 was a Train Operator. Her claims for sex discrimination failed however she was successful in her claim relating to flexible working and was awarded £2,720.   

Jones had made a request not to work any Saturday, to work alternate Sundays and for all other days only to work between the hours of 7am and 9pm and to finish at her local depot. Her request was on a childcare need basis and wanted to work opposite shifts to her partner.   

Her request was refused but she was granted a temporary local arrangement in relation to finishing at her local depot. She joined a voluntary local syndicate that enabled her to swap shifts meaning she didn’t in fact work Saturdays.  

The local arrangement came to an in end in 2020 and subsequently, she put in a formal flexible working application, which was refused.   

What Claims Were Then Made by Jones?

Jones brought a claim for direct sex discrimination, indirect discrimination (amongst other claims) and a claim in relation to flexible working.  

She claimed that the refusal to grant her flexible working request was directly discriminatory based on her sex and that as a woman she was at a disadvantage compared to male colleagues. The disadvantage being that women disproportionately are responsible for childcare and that the shifts therefore caused her more issues than they would a male colleague. She also claimed that her flexible working request was not properly dealt with.  

The tribunal accepted that there was a Provision Criterion or Practice (PCP) that required train operators and the Claimant to work on a Saturday, and to work earlies and lates every other Saturday and Sunday.   

What Was the Tribunal’s Decision?

The tribunal also accepted that there is a disproportionate burden on women relating to childcare that placed the Claimant at a disadvantage.  

However, the tribunal also accepted that the London Underground’s behaviour was a proportionate means of achieving a legitimate aim, meaning that their reasons for refusal did not result in liability for indirect discrimination- i.e they could successfully defend the fact that even though it was accepted she was at a disadvantage by means of being a woman, they could legally justify the decisions taken.  

The tribunal accepted that the following were a ‘proportionate means of achieving a legitimate aim’: 

• The ability to maintain the performance of the Central Line 
• Balancing the rights and needs of those across the workforce  
• Maintaining good industrial relations and the union negotiated agreement  

The tribunal also found that the decisions made were not based on Jones’s gender, and that it was to avoid a queue of workers generally not wanting to work weekends. As a result the direct sex discrimination claim failed.  

The Outcome of the Case

However, the London Underground failed on the flexible working request with the tribunal finding that the request was not properly dealt with. 

The case serves as a reminder that managing shifts can represent an ongoing risk in respect of discrimination, but properly dealt with that risk can be managed, it is essential to deal with flexible working requests properly and in a procedurally fair manner. It was an element of the case that the London Underground had the resources and expertise to deal with, but failed to do so and whilst the ultimate liability was comparatively minor, it was avoidable.  

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