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Indirect Sex Discrimination

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Does the employment tribunal have to weigh the legitimate business aims of the employer against the provision criterion or practice (PCP) when determining justification for the discriminatory effect?

Yes, held the EAT XC Trains Ltd v CD and Aslef & Others.

The employee is a single mother who had three children under the age of five. She had great difficulties meeting her child care requirements and fulfilling her obligations under her full-time contract of employment.

The EAT held the PCP of requiring a workforce to work over 50% of rosters and on Saturdays amounted to indirect sex discrimination under s19 Equality Act 2010 on the basis it disadvantaged women.

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 applied the Supreme Court's decision in Homer which emphasised the need for employment tribunals to take a structured approach to the question of justifying the PCP with a legitimate aim.

It held that the employment tribunal erred in law by failing to weight the legitimate aims of the employer against the discriminatory effect of the PCP. Further the employment tribunal erred in law in positing means of removing the discriminatory effect of the PCP without considering whether there was a factual basis for their suggestions and their effect on other employees.