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Indirect sex discrimination: Turning down flexible working request not discriminatory despite "childcare disparity"

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By Ceri Fuller & Hilary Larter

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Published 06 October 2023

Overview

Having been told by the EAT to re-examine the issue, an employment tribunal has held that the dismissal of a nurse who refused to work at weekends because of childcare responsibilities was objectively justified and not discriminatory, despite "childcare disparity" faced by women in the workforce.

The facts

As we reported in July 2021 (please see here), Ms Dobson was employed by North Cumbria Integrated Care NHS Foundation Trust as a community nurse.  She has three children, two of whom are disabled. She had a long-standing flexible working pattern to accommodate her childcare arrangements. When she was asked to change her working pattern to include occasional weekend working, she refused to agree to the change because of her childcare responsibilities. She was dismissed and re-engaged under the new working pattern. She brought claims in the employment tribunal of unfair dismissal and indirect sex discrimination. Her indirect discrimination claim was pleaded on the basis that “women are more likely to be child carers than men”.

The employment tribunal dismissed Ms Dobson's claims. She successfully appealed to the EAT which held that the tribunal should have accepted, without hearing evidence (or taken 'judicial notice'), the fact that more women than men tend to have childcare responsibilities and so are more likely to be unable to comply with flexible working requirements. This is known as the 'childcare disparity'. The EAT also held that Mrs Dobson had suffered a disadvantage because of the requirement ("PCP") imposed by the Foundation Trust to work flexibly, including at weekends. The case was remitted to the employment tribunal to consider whether application of this PCP was a proportionate means of achieving a legitimate aim (or objectively justified in legal language).

This is a summary of the decision of the tribunal at the remitted hearing. At the original hearing, the tribunal had found that the Foundation Trust's legitimate aim was the need to provide care to patients in the community (24 hours per day, 7 days a week), to balance workload among the team and reduce the cost of having to use more senior, and therefore more expensive, nurses at the weekend. At the remitted hearing, the tribunal only had to consider whether the dismissal and re-engagement of Ms Dobson was objectively justified, balancing the extent of the disadvantage to Ms Dobson against the reasonable needs of the Foundation Trust.

On the facts, the tribunal held the Foundation Trust's decision was justified. Ms Dobson had not been required to comply fully with the PCP and would only have to work occasional weekends – fewer than her colleagues. Ms Dobson did have some access to family childcare while she was working occasional weekends and, in light of this, the disadvantage to her was on the lower end of the scale.  This disadvantage to her was balanced against the needs of the Foundation Trust, which included providing 24/7 patient care, earlier discharges from hospital, avoiding gaps in the service, operating a fair staff rota, freeing up senior nurses to be available during weekends, and saving costs. The only solution Ms Dobson gave during consultation with the Foundation Trust was to exempt her from the PCP entirely; she had made it clear that she would not consider any compromise.

What does this mean for employers?

Employers who turn down flexible working requests by women with childcare responsibilities risk successful indirect discrimination claims. However, this case shows the importance of conscientious consultation, including exploring alternatives which may be less disadvantageous to the employee. The tribunal praised the decision makers' sympathetic and knowledgeable approach, commenting on the time and effort put into consultation and that the Foundation Trust had sought to explore every conceivable way of meeting Ms Dobson's needs before it had run out of options. When the new flexible working regime comes into force (on a date yet to be confirmed) consulting with employees will be a key part of the new statutory process so this step will become even more important for employers.  

Mrs Gemma Dobson -v- Cumbria Partnership NHS Foundation Trust

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