UK: Indirect Discrimination: “Childcare Disparity”
Authors: Charlie Urquhart, Ruth Bonino and Sophie Jackson
Ms. Dobson was employed as a community nurse. She worked fixed days each week under a long-standing flexible working arrangement. Her employer North Cumbria Integrated Care NHS Foundation Trust introduced a new policy which required community nurses to work variable days, including weekends. Ms. Dobson was unable to do this because of her caring responsibilities for her three children, two of whom are disabled. She was dismissed.
Ms. Dobson lost her tribunal claims for unfair dismissal and indirect discrimination. She appealed to the EAT which then overturned the tribunal’s decision in 2021. The case was then remitted back to the tribunal where she lost again.
At the first tribunal hearing, the tribunal found that whilst it was clear Ms. Dobson was disadvantaged based on her own personal circumstances, there was no evidence that women as a group were disadvantaged by the Trust’s policy to require weekend working. Without this evidence, the tribunal concluded that Ms. Dobson’s indirect sex discrimination failed.
On appeal, the EAT said the tribunal should have also considered whether group disadvantage could be shown in other ways. There was no requirement for Ms. Dobson to produce evidence to support the argument that women were disadvantaged by a requirement to work flexible or variable working patterns, that was just one of the ways that disadvantage could be shown. The tribunal should have also considered whether group disadvantage could be established by other means including by taking judicial notice of the fact that women because of their childcare responsibilities, are less likely to be able to accommodate some working patterns than men.
The case was then remitted to the tribunal, which found that Ms. Dobson had not suffered indirect discrimination or been unfairly dismissed. The tribunal concluded that her dismissal for refusing to work weekends was justified because it was a proportionate means of achieving her employer’s legitimate aim to provide care in the community 24/7. Having balanced the extent of the disadvantage to Ms. Dobson against the reasonable needs of the Trust, the tribunal found that the requirement that all community nurses work flexibly was proportionate. The other nurses in Ms. Dobson’s team had to work more often at weekends, leaving more senior (expensive) nurses less available for management issues during the week. Ms. Dobson was unable to help at weekends as she had two disabled children but the disadvantage to Ms. Dobson was at the lower end of the scale, as on the facts she had some family childcare available. Requiring her to work occasional weekends was the only measure open to the Trust (the only alternative was to exempt her altogether).
Key Action Points for Human Resources and In-House Counsel
Although the employee lost her indirect discrimination and unfair dismissal claims, this case does not overrule the EAT’s comments in 2021 regarding childcare disparity, and the fact that whilst things have progressed somewhat (in that men do now bear a greater proportion of child caring responsibilities than they did decades ago), the position is still far from equal, and tribunals should still consider the “childcare disparity.” Although the remitted tribunal’s decision illustrates that the childcare disparity does not inevitably lead to the conclusion that any form of flexible working puts, or would put, women at a particular disadvantage, such that they would always succeed in an indirect discrimination claim, we would caution employers not to place too heavy a reliance on this point as such cases always turn on the facts. It is also worth noting the tribunal’s comment that the principle of allowing flexible working should not be applied too strictly and an employer’s needs as a whole must sometimes prevail – but again, the prudent course would be to adopt a safety-first approach in these types of situations.