The disruption caused by recent industrial action on the Southern train network and the Underground has had a significant impact on people who rely on them to get to work. Strikes and disrupted service outside of strike days have caused misery for up to 300,000 people.
There have been consistent reports of passengers having to move jobs and even homes because they have been unable to cope with the disruption any longer. And there appears to be no end in sight, with Southern advising passengers to expect the disruption to continue until further notice. So should employers take transport strikes into account when making recruitment decisions?
Legal considerations
Individuals are protected from unlawful discrimination when applying for vacancies. It is generally unlawful for employers to discriminate against a job applicant because of their sex, race, age, disability, sexual orientation, religion, belief, or gender reassignment by either refusing employment or in their recruitment arrangements. However, refusing to employ someone purely because of the nature of their commute is unlikely to amount to direct discrimination.
But employers can also be liable for unlawful discrimination if they apply a policy, criterion or practice to all job applicants that disadvantages one particular group with a protected characteristic more than another. For example, if it could be established that an employer had a policy of not recruiting individuals who relied on Southern trains, to bring a claim of indirect discrimination the unsuccessful job applicant would need to demonstrate that they were part of a group with a particular protected characteristic that was disadvantaged by this policy and that they were personally disadvantaged as well.
Again, it may be relatively difficult to see that one particular group with a protected characteristic would be more likely to be disadvantaged by this type of policy than any other, save possibly for applicants with particular medical conditions who may have less flexibility over their travel arrangements and therefore are less able to make alternative plans when their commute is disrupted. In the event that a job applicant could show this level of disadvantage the employer would avoid liability if it could establish that the policy was a proportionate means of achieving a legitimate aim.
Practical points
The commercial effects of implementing a recruitment policy along these lines are also important to consider. Although the current disruption to Southern services shows no signs of ending, the dispute between Southern, ASLEF and the RMT unions should be resolved eventually and/or a normal service resumed, and employers run the risk of losing talented recruits just because of their travel arrangements.
Consider whether the employees could work from home or make up time that has been lost due to late or cancelled trains. Ultimately it is the employee’s responsibility to ensure that they comply with their employer’s working hours, and if their journey is likely to be disrupted by industrial action to make alternative travel arrangements as far as possible.
Given that the problems affecting the Southern network are now well-known, it is not unreasonable for employers to expect that their employees will have contingency plans in place. Whereas one or two incidences of lateness may be accepted, a consistent failure to arrive on time could be treated as a disciplinary issue. For new recruits this could be considered as part of a standard probationary review process and a decision as to whether to confirm permanent employment made at this point.
Nick Le Riche is partner at Bircham Dyson Bell
