EAT confirms women still bear the greater responsibility for childcare than men (for now).
In Dobson v North Cumbria NHS Trust, the EAT has once again confirmed that for now women still have a greater responsibility for childcare than men and do not need to provide proof of that in challenging workplace arrangements that have a disproportionate impact on them.
Mrs. Dobson was employed as a community nurse. Due to her childcare commitments Mrs. Dobson had, for a number of years, worked only on Wednesdays and Thursdays, when her mother-in-law could provide childcare. Two of Mrs. Dobson’s children are disabled. In 2016, following a review of its working arrangements the employer sought to introduce more flexible working, including working on weekends due to an increased demand for its services. Mrs. Dobson made it clear that she could not do this. Consequently, she went off sick and raised a grievance, which was rejected. Following a long period of consultation, Mrs. Dobson was informed by her employer that it had no other option but to terminate her existing arrangement and to re-engage her on the new terms requiring the additional weekend days. Mrs. Dobson did not accept the new terms and in April 2017 was dismissed. She brought tribunal proceedings for unfair dismissal, victimisation and indirect sex discrimination. The tribunal dismissed her claims and in respect of her indirect sex discrimination case held that as all the other community nurses in her team could comply with the new terms there was an absence of any evidence demonstrating that women as a group were (or would be) disadvantaged by the requirement to work flexibly and as such her claim failed.
The Tribunal went on to state that if it was wrong in its primary conclusion that there had been no particular disadvantage, any indirect discrimination could be justified on the basis of pursuing the legitimate aim of achieving flexible working by all community nurses in order to provide a safe and efficient service.
In relation to the correct pool, the EAT held that the Tribunal did err by limiting the comparison to those in Mrs. Dobson’s team. Having found that the new working arrangements required all community nurses to work flexibly, including weekends, it was incumbent on the Tribunal to identify a pool comprising all persons affected by the changes and logically should include all community nurses at the trust required to work flexibly.
In relation to the requirement to work flexibly putting women at a particular disadvantage compared to men, the EAT held that the childcare disparity is so well known in the context of indirect discrimination claims and so often the subject of judicial notice in other cases that it was incumbent on the tribunal to take notice of it and that it had erred in treating her case as unsupported by evidence.
Further, the EAT concluded that it does not need to be impossible for an employee to comply with a requirement before it was a disadvantage and the fact that compliance is possible but with real difficulty, or with additional arrangements having to be made, or by shifting the childcare burden on to another, can still mean that there is a disadvantage and as such the Tribunal had erred in law.
In relation to justification, the EAT held that the Tribunal’s findings could not stand given the errors and the matter was remitted to the same tribunal to consider the issues of indirect sex discrimination and unfair dismissal again.
Implications for employers
As we discussed in our last edition, there is likely to be a significant increase in the number of flexible work requests in response to a return to normal working arrangements and this case will add clear support in relation to the acceptance of such requests where they are based on genuine child care issues. However, it is also a useful reminder that promoting increased flexibility may also be driven by employers. Employers should therefore carefully consider proposals to alter working arrangements and look for disadvantages that might be suffered and see what can be modified either to remove or at least mi8gate that impact while achieving the desired result. Unlike direct discrimination, indirect discrimination can be justified if the employer can show that the arrangement is a proportionate means of achieving a legitimate aim.