UK: When Can Indirect Sex Discrimination be Justified?

Authors: Robert Hill and Charlotte Stern 

The Employment Appeal Tribunal has ruled that in certain fact specific circumstances, imposing a change of shift pattern on a part-time employee will not be discriminatory.

A recent case has provided useful guidance on justifying indirect discrimination.  In this case, an NHS Trust had required its community nurses to work flexibly, including weekends. Mrs Dobson however had always worked days fixed around her childcare.  In this particular case, requiring her to work some weekends was found to be justified and not indirectly discriminatory against women.

Mrs Dobson, a long‑standing part‑time nurse with disabled children, had previously worked fixed mid‑week days.  The Trust issued her with notice of termination and offered re-engagement on revised terms (including weekend working) but she did not accept.  She brought a claim for indirect sex discrimination and unfair dismissal and lost.

The Employment Tribunal accepted that the provision criteria or practice applied by the Trust of requiring staff to provide weekend coverage was legitimate – so as to enable it to provide 24/7 patient care, balance workload and reduce weekend staffing costs.  They also agreed that it was proportionate, noting that Mrs Dobson could have worked some weekends and no other nurses had been unable to comply.   The Tribunal noted that it was “striking” that Mrs Dobson suggested no alternatives during extended discussions.

On appeal, the EAT held that Tribunals must consider disadvantage to both the wider group and the individual, and it was legitimate to factor in Mrs Dobson’s personal circumstances and inflexibility.  The overall group disadvantage was at the lower end, so the Tribunal had been entitled to find the PCP justified.   They also gave some guidance when looking at indirect discrimination:

• What matters is that both group and individual impact are weighed against the employer’s needs
• Helpfully, employers are not required to conduct organisation-wide monitoring of the impact of changes
• It’s always sensible to explore alternatives/reasonable compromises when imposing changes and employees who fail to make suggestions may be at a disadvantage, although employers should try address suggestions when they are put forwards.

Practical point

This case confirms that currently, an employer may be able to defend a claim of indirect discrimination where they take a pragmatic approach to imposing changes, which clearly balance legitimate service needs with an analysis of the individual and group impact.

A word of caution though – because once fire and rehire restrictions are introduced in 2027 – this type of change of shift from weekday to weekend working might well fall within the definition of a ‘restricted variation’ and therefore someone in Mrs Dobson’s position might have a claim of automatic unfair dismissal.  We will know more once the fire-and-rehire consultation has closed and the regulations are published.

Mrs_Gemma_Dobson_v_North_Cumbria_Integrated_Care_NHS_Foundation_Trust__2026__EAT_32.pdf