A NEW rostering system for train operators with which 100 per cent of male operators, but only 95.2 of female operators, were able to comply amounted to indirect discrimination on the ground of sex, contrary to section 1(1)(b) of the Sex Discrimination Act 1975.
The Court of Appeal dismissed the appeal of London Underground Ltd against a decision of the Employment Appeal Tribunal, which had dismissed its appeal against a decision of an industrial tribunal that it had unlawfully discriminated against a former employee, Susan Edwards, on the ground of her sex, contrary to the Sex Discrimination Act 1975.
The applicant had been employed by LU since 1983. She had qualified as a train operator in 1987, and in the same year had given birth to a child of whom she had sole care. For most of her employment she had worked at the Northfields train depot where, until the end of 1992, rostering arrangements based on a system of three shifts per 24 hours were in force.
Because extra payments were made for working unsocial hours, the applicant was able, by making the necessary swops with other operators, to organise a shift pattern in which she could accommodate her domestic and childcare arrangements.
In 1991 LU brought into effect a new system of rostering, under which flexible shifts were introduced. Operators were expected to work over a seven-day period and to be paid a fixed salary, working an average of 38.5 hours per week over a four-week period. As a result of the scheme a person wishing to work social hours would have to exchange shorter shifts for longer shifts, with no extra remuneration to attract a person to work the unsocial hours.
When the new system was introduced, the applicant made it clear that if she could not be satisfied that she could continue to exchange shifts, she would not be able to carry on in LU's employment. The parties agreed that she should sign her new form of contract and then be given a voluntary severance payment.
David Bean QC and Ingrid Simler (Solicitor to London Transport Legal Department) for LU; Robin Allen QC and Clive Lewis (Equal Opportunities Commission) for the applicant.
Lord Justice Potter said that the applicant's complaint was that she had been indirectly discriminated against on the grounds of her sex, contrary to section 1(1)(b) of the Sex Discrimination Act 1975, as amended, which provided that a person discriminated against a woman if:
he applies to her a requirement or condition which applies or would apply equally to a man but - (i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it; and (ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied; and (iii) which is to her detriment because she cannot comply with it.
It was common ground that, for the purposes of comparing the proportion of women and men employees who could comply with the new rostering arrangements, the "pool" was that of all train operators to whom the new rostering arrangements applied. The industrial tribunal had found that the pool consisted of 2023 male train operators, of whom all, ie 100 per cent, could comply, and 21 female train operators, of whom all but one, i.e. 95.2 per cent, could comply.
It had been submitted for LU that the industrial tribunal had erred in law in finding that 95.2 per cent was a "considerably smaller" proportion than 100 per cent. However, the tribunal had been entitled to have regard to the large discrepancy in numbers between male and female train operators. An increase of no more than one in the women unable to comply would have produced an effective figure of some 10 per cent as against the nil figure in respect of men, while on the other hand, one male employee unable to comply would scarcely have altered the proportional difference at all.
Plainly a percentage difference of about 5 per cent was inherently unlikely to lead an industrial tribunal to the conclusion that the requirements of section 1(1)(b) had not been made out, but it could not be said that such a conclusion must inevitably follow in every case.
Kate O'Hanlon, BarristerReuse content