Alan McCormack | Senior Associate

“Working 9-5 – No Longer a Way to Make a Living”

In XC Trains Ltd v CD & Anor UKEAT/0331/15/L, the Employment Appeals Tribunal (EAT) considered whether requiring a female train driver to work over fifty per cent of rosters and on Saturdays could be justified. The Claimant who raised the claim was a single mother.


The Claimant commenced employment with XC Trains Limited on 6 January 1997. Initially she was employed as a train driver, however her most recent post was train driver/instructor. She worked on a full time basis.

The Claimant and her colleagues were employed to work 35 hour week over six days. There was an obligation to work on rostered Saturdays.

The Claimant had three children and was separated from her husband. This had led to difficulties with childcare. In order to care for her children the Claimant made several flexible working requests.

The details of the Claimant’s flexible working requests involved not working early or late shifts and not working Saturday or Sundays. However, although the Respondents rejected the flexible working requests they did grant alternatives for a fixed period of time.

The claimant brought a claim for unfair dismissal.

Employment Tribunal Decision

The Provision, Criteria or Practices (PCP) which the Claimant relied upon was the requirement to be able to work 50% of rosters and on Saturdays.

The ET held that the PCP disadvantaged woman on the basis that they could not comply with the shift system and that, in most cases, women remained the primary caregiver especially to children of school age.

The Claimant was placed at a particular disadvantage because even with the help of child carers and nannies she required further assistance and relied upon her mother to help. Had the claimants mother been unable to assist then she would have been unable to carry on working.

The ET held that XC Trains failed to objectively justify the shift pattern, it was held that alternative shift patterns were available which would have accommodated women’s childcare responsibilities.

The ET upheld the claim for indirect discrimination. The Respondents appealed.

The Employment Appeals Tribunal Decision

The grounds for appeal were that the ET had erred in its approach as to the question of whether the PCP put woman at a particular disadvantage, the decision by the ET was perverse and that the ET erred it its application of the ‘objective justification’ test.

The EAT held that the ET did not err in its approach as to whether the PCP placed women at a particular disadvantage nor had it erred in holding that the claimant was placed a particular disadvantage. However, the ET had erred in law through its application of the ‘objective justification’ test. They had failed to weigh the legitimate aims of the First Respondent against the discriminatory impact of the PCP rather than their own.


The claim was remitted to a fresh ET to decide whether the discriminatory PCP was a proportionate means of achieving a legitimate aim.

Contact our Employment Law Solicitors Glasgow

Jackson Boyd have a proven commitment to providing our customers with the best possible services and results, and have been helping people in employment disputes across Scotland for over twenty years. We specialise in dealing with contentious litigation in the areas of property law, road traffic lawpersonal injuryemployment law and dispute resolution. In the last year alone, we have assisted over 12,000 people and secured millions of pounds in compensation. To speak to our team of highly experienced solicitors, get in touch today via our online contact form, or telephone us on 01412496903.

Alan McCormack

Alan McCormack

Employment Law Team

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