Requiring a female London Underground driver to work on Saturdays is not sex discrimination – but an employment tribunal has recognised that the practice can disadvantage women because they take on greater responsibility for childcare.
The case heard by an employment tribunal in east London centred on Ms Jones, who has been a train driver for the London Underground network since 2001 and is based at the Hainault depot, which serves the Central Line.
She became a mother in 2013 and asked to have Saturdays off to look after her child, as her partner is a bus driver and is required to work every weekend.
Drivers on the London Underground are usually required to work weekends, often on longer shifts than weekdays. Drivers at the Hainault depot are rostered to work approximately 50% of weekends, but drivers at the depot run a syndicate where they can swap their rostered shifts with other colleagues to match their preferences.
Flexible working requests
Flexible working changes 2024: How the new law works
Most flexible employers in the UK revealed
Greater flexibility for over-50s will help UK swerve a ‘looming retirement crisis’
Jones’s flexible working request in 2013 was declined, but a temporary agreement was reached with the depot in which her rest day was scheduled for every other Saturday. She was told the alternate Saturday shifts could be arranged through the syndicate. If the syndicate could not facilitate a Saturday off for her, the depot would swap that week’s Saturday shift with one of her other rest days.
This agreement remained in place for 10 years, but was not written into her contract.
In December 2020 she was told that the agreement would be terminated.
She appealed against the decision, and at a meeting in April 2021 with the line’s head of operations Mr Smith, Jones claimed that the arrangement she had since 2013 was a “flexible working agreement” that progressed to a local agreement.
The employment tribunal found that the wrong terminology had been used, as she had never secured a flexible working agreement with the organisation. This error played a part in how the employer dealt with a formal flexible working request that followed.
At the end of the meeting, Jones was informed that her appeal had been rejected and she was told that the agreement would have to end because it had a detrimental impact on the depot’s Saturday coverage and the quality of service it could offer customers. However, the temporary agreement was extended to 15 May 2021 to allow her to find alternative childcare arrangements.
Jones signed an application for flexible working before she left the meeting. It was countersigned by the depot’s train operations manager, Mr White.
The appeal decision was also communicated in a letter.
The following month, Jones contacted White asking what had happened to the flexible working application she had signed. White contacted Smith to remind him that he had included the application in the overall pack he had sent to Smith after the meeting in April. Smith said he had been unable to agree to the request and asked White to inform Jones.
White explained that the organisation was unable to grant her request for flexible working due to the business impact that it would have. He said that Smith’s decision letter in April was the end of the appeal process.
However, it emerged at the tribunal that Smith and White had incorrectly been referring to Jones’ appeal as a flexible working request. This oversight meant that her formal flexible working application had not been dealt with.
Jones made a bullying and harassment complaint against White and Smith, and alleged they had discriminated against her because of her sex.
Jones was signed off work by her GP in June 2021 following an adverse reaction to a Covid-19 vaccination. Later that month, she attended a return to work meeting and was told she would be placed on temporary additional duties at Liverpool Street station as she was unable to drive a train. This meant she was not able to swap shifts via the Hainault syndicate. Jones made a further complaint about this arrangement.
Her complaints were rejected by the organisation in August 2021. She submitted an employment tribunal claim alleging that she had suffered direct and indirect sex discrimination, victimisation, and that the company had failed to deal with her flexible working application.
Decision was not discriminatory
The tribunal did not find that Jones’s contract of employment had been amended by practice or performance while she was using local agreements and the syndicate, and found that the requirements of her core employment contract were still in place.
It rejected her direct sex discrimination claim because there had been a credible reason for denying her request for Saturdays off that was not related to sex.
Although employment judge Stephen Shore recognised that requiring train drivers to work Saturdays, along with alternate weeks of early and late shifts and weekends, puts women “at a particular disadvantage in comparison to men because of the accepted greater responsibility for childcare on women”, the tribunal found that the organisation had a legitimate aim for doing so.
This was because it needed to ensure adequate staff were in place and that it balanced the rights and needs of the workforce; the London Underground has a shortage of drivers and most would prefer not to work weekends.
This meant Jones’s indirect sex discrimination claim failed. Her victimisation claim was also dismissed.
However, the tribunal has awarded £2,720 in compensation to Jones because it found that London Underground failed to deal with her flexible working request from April 2021 in a reasonable manner.
The judgment says: “The respondent is a very large employer. It is highly regulated and unionised. It has many policies and procedures in place. We find that there is little excuse for the respondent getting the process of dealing with a flexible working request as wrong as it did in this case. The claimant’s use of the wrong terminology does not excuse the respondent.”
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
The judge said that the individuals dealing with the flexible working situation should have taken advice from HR if they were unsure whether Jones already had a formal arrangement in place.
Latest HR job opportunities on Personnel Today
Browse more human resources jobs
