In this case, the EAT upheld a tribunal's decision that the dismissal of a nurse who refused to work at weekends was objectively justified and not discriminatory, despite the "childcare disparity" faced by women in the workforce.
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. At the relevant time in 2016 she had three children, two of whom are disabled. She had a long-standing fixed working pattern to accommodate her childcare arrangements, only working on Wednesday and Thursday each week. When the Trust sought to change her working pattern to work flexibly, including occasional weekend working, she refused to agree to the change because of her childcare responsibilities. She was dismissed and offered re-engagement on the new working pattern, which she rejected. She brought unsuccessful claims 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”.
Ms Dobson successfully appealed to the EAT, which held that the tribunal should have accepted, without hearing evidence, 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 case was remitted to the same tribunal to consider whether asking Ms Dobson to work flexibly to provide 24/7 cover for the service (the legitimate aim) was a proportionate means of achieving that aim (or objectively justified in legal language) and whether the dismissal was fair. The tribunal dismissed her claim again, as we reported here.
Ms Dobson appealed to the EAT again. She contended unsuccessfully that, in assessing the proportionality of the PCP, the tribunal had mistakenly focused too much on the disadvantage to Ms Dobson, rather than the affected group more widely, and had placed too much weight on her responses during the consultation process before her termination.
In deciding that the tribunal was entitled to take the approach it did, it was key to the second EAT's decision that:
- How tribunals approach the available evidence is a matter of judgment for them: what is required is for the tribunal to balance the extent of the disadvantage to the employee impacted by the PCP against the needs of the employer.
- Provided the tribunal has regard to group disadvantage, a tribunal's analysis is not undermined by considering the impact on the individual.
- The fact that every other community nurse was ultimately able to comply with the PCP was relevant in assessing the seriousness of the detriment caused to the group.
- Requiring the Trust to monitor the impact of the PCP, as Ms Dobson contended, in order for a PCP to be justified is an unreasonable burden. A tribunal should not require evidence from an employer which it cannot reasonably be expected to produce.
- While a claimant is not under any legal requirement to propose alternatives, this may be a material consideration on the issue of justification. In this case the tribunal found it "striking" that Ms Dobson suggested no compromises during the various meetings to discuss a her working pattern, and this was her position during both substantive tribunal hearings.
- The means of achieving the legitimate aim of providing 24/7 cover was negotiable to a point as this requirement did not specify the regularity with which Community Nurses were required to work flexibly or at weekends. This elasticity did not undermine the Trust's justification argument.
- A reasonable employer will endeavour to reach an accommodation with an employee, and this does not undermine its aim(s).
What does this mean for employers?
The employer in this case was helped by the fact it needed to provide a 24/7 service and the employee's failure to engage at all with alternatives. Despite these facts, the decision gives comfort to employers who wish to ask about caring responsibilities when exploring alternatives to flexible working with employees.
Employers need to remember that from 1 January 2027, when the fire and rehire provisions of the ERA 2025 come into force, it will become automatically unfair to dismiss an employee for refusing to agree to a restricted variation, including changes to the timing or duration of shifts. To read more about this change please see our ERA 2025 tracker here.
Dobson v North Cumbria Integrated Care NHS Foundation Trust (No 2)
