Member Article

A recent case reminds us of the continuing reality that women, because of their childcare responsibilities, are less likely to be able to accommodate certain working patterns than men and that failing to take this into account could be discriminatory.

The case of Dobson v North Cumbria Integrated Care NHS Foundation Trust involved a claim of indirect sex discrimination. Under the Equality Act 2010, indirect discrimination can occur where an employer applies a provision, criterion or practice (PCP) which puts those with a protected characteristic at a particular disadvantage when compared to others without that protected characteristic, and the individual bringing the claim has the protected characteristic and was also put to that disadvantage, unless the employer can show the PCP to be a proportionate means of achieving a legitimate aim. The Employment Appeal Tribunal (EAT) in this case considered both the pool for comparison and the evidence required for group disadvantage in the context of an indirect sex discrimination claim.

Facts of the case

The Claimant, Mrs Dobson, was employed by the Respondent as a community nurse in the Cockermouth Community Nursing Team from 2004. After the birth of her first child, who is disabled, Mrs Dobson made a flexible working request to work 15 hours per week over two fixed days, which the Respondent agreed to. Mrs Dobson went on to have two more children and her third child was subsequently diagnosed with autism.

In 2013 the Respondent held a working pattern review. Mrs Dobson was initially asked to work the occasional weekend but the parties agreed that because of her domestic circumstances her existing fixed hours would continue. In 2016 the Respondent issued a new rostering policy under which all flexible working arrangements across the Trust were to be reviewed. Mrs Dobson was again asked to work an occasional weekend and was told this would be no more than once a month. However, she explained that she could not work any alternative arrangements as she had no other childcare available. She rejected the proposal and raised a grievance.

Her grievance and appeal were rejected. The Respondent informed Mrs Dobson that it had no option but to issue a notice of dismissal and to re-engage Mrs Dobson on new terms requiring her to work on additional days. Mrs Dobson did not accept the new terms and on 26 April 2017 the Respondent gave notice to terminate her employment.

Employment Tribunal decision

Mrs Dobson brought, amongst others, a claim for indirect discrimination based on the protected characteristic of sex, in particular being female with caring responsibilities.

The Tribunal found that Mrs Dobson’s sex and her caring responsibilities could not be conflated in this way. No evidence was put forward to the Tribunal that the PCP of requiring community nurses to work flexibly, including at weekends, put women at a particular disadvantage compared to men. The rest of the women on Mrs Dobson’s team were able to meet the requirements. In the absence of any evidence demonstrating that women as a group were (or would be) disadvantaged by the requirement to work flexibly, the Tribunal concluded that Mrs Dobson’s claim failed. In any event, the Tribunal held that the Respondent was pursuing the legitimate aim of achieving flexible working by all community nurses in order to provide a safe and efficient service, and that it was proportionate to do so by applying the PCP to all members of the nursing team.

EAT decision

Mrs Dobson appealed to the EAT who allowed her appeal. In particular, the EAT found that the Tribunal had erred in two areas, specifically by limiting the pool for comparison to Mrs Dobson’s team and finding no evidence of group disadvantage.

(a) The choice of pool

The starting point for identifying the pool is to identify the PCP. That PCP ought, as a matter of logic, to identify the relevant pool, i.e. all those persons to whom that PCP was applied.

The EAT concluded that having found the PCP required all community nurses to work flexibly, including weekends, it was incumbent on the Tribunal to identify a pool comprising all persons affected by that PCP, that is, all community nurses.

(b) Requirement to produce evidence

The EAT also found that the Tribunal erred in holding that Mrs Dobson was required to produce evidence to demonstrate that women as a group were (or would be) disadvantaged by the requirement to work flexibly, including at weekends. This was a matter in respect of which the Tribunal ought to have taken judicial notice.

Courts sometimes give judicial notice to matters where, for instance, the facts are so well known to the court that they can be accepted without further enquiry.

The fact that women bear a greater burden of childcare responsibilities than men and this can limit their ability to work certain hours (the so called childcare disparity) is a matter in respect of which judicial notice has been given and which should, therefore, be taken into account by a Tribunal if relevant.

However, taking judicial notice of the disparity does not automatically mean there is a group disadvantage. This will depend on the general position that is the result of the childcare disparity and the PCP in question. In this case the PCP was to work flexibly, which meant working on other days as and when required by the Trust. The EAT concluded that because there was no flexibility for the nurses to choose the days or hours they worked (within certain parameters) there was likely to be a relationship between the childcare disparity and PCP that resulted in a group disadvantage.

The case was therefore remitted to the same Tribunal to consider the issue of indirect discrimination further.

What does this mean for employers generally?

Although this case does not change the law in this area, it is interesting in that it shows the childcare disparity is still a recognised predicament even with men bearing a greater proportion of child caring responsibilities than they did in the past. Whilst it is possible that this will change in time, at the moment the position remains that the burden of childcare is far from equal. Given that employers may be considering changing working patterns at this time, it is worth remembering that any change in working arrangements needs to be carefully considered in light of the childcare disparity and the risk of an indirect sex discrimination claim.