Indirect discrimination: the ‘childcare disparity’


29 June 2021

The Employment Appeal Tribunal (EAT) considered whether the employment tribunal had erred in failing to take into account the ‘childcare disparity’ in deciding a case of indirect sex discrimination.

Dobson v North Cumbria Integrated Care NHS Foundation Trust UKEAT/0220/19

Facts

The claimant was employed part-time as a community nurse, working fixed days. She has three children, two of whom are disabled. The trust decided to introduce a more flexible working pattern, which included a requirement that community nurses worked at weekends. The claimant was unable to comply with this requirement due to her caring responsibilities, and she was eventually dismissed.

Her claims for unfair dismissal and indirect sex discrimination were not upheld by the employment tribunal. In relation to the indirect sex discrimination claim, the tribunal accepted that the requirement for community nurses to work flexibly was a ‘provision, criterion or practice’ (PCP) applied by the employer, but it had not been shown any evidence that the PCP had put women at a particular disadvantage compared to men. It noted that all of the claimant’s female colleagues, as well as the single male colleague, were able to meet the requirement. The tribunal went on to find that the trust was pursuing the legitimate aim of providing a safe and efficient service, and in pursuing this aim it was proportionate to require the nurses to work flexibly. The claimant appealed to the EAT.

EAT decision

The EAT has allowed the claimant’s appeal. When considering the question of whether women as a group were put at a disadvantage by the PCP, the tribunal should have taken into account all community nurses employed by the trust (and who were subject to the same requirement), not just those in the claimant’s team. In addition, the tribunal had failed to take into account 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.

Previous cases have established that this childcare disparity can be accepted by tribunals without the need for further evidence. The tribunal had not been expressly asked to take judicial notice of the childcare disparity, but it should have done so before reaching its decision. The EAT was satisfied that on the facts of this case, the PCP of requiring flexible work (including weekends) was likely to mean that the group disadvantage was made out in respect of female staff, in addition to the disadvantage to the claimant herself. The case was remitted to be reheard.

Consequences

This decision does not mean that the claimant has succeeded in her claim for indirect sex discrimination. It means that a tribunal is likely to find that the PCP of requiring flexible working puts women at a particular disadvantage, in addition to the claimant herself being at a disadvantage. It will still be open to the employer to persuade the tribunal that it can objectively justify the indirect sex discrimination.

The EAT pointed out in its decision that societal norms and expectations change over time and are not set in stone, but it did not consider the childcare disparity to be something that had changed even though men do now bear a greater proportion of childcare responsibilities. For the time being at least, employers should assume that decisions around working hours and patterns are still more likely to have a disproportionate impact on women.

These articles are from the June 2021 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts' Employment Law Team.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at June 2021.

Author

Liz Stevens

Professional Support Lawyer

+44 (0)1603 756474

+44 (0)7580 355031

Contact

* denotes required fields.