Discrimination and the “childcare disparity”
23 October 2023
An employment tribunal (ET) considered whether an employer’s requirement for its nurses to work flexibly amounted to indirect sex discrimination due to the claimant’s childcare responsibilities.
Dobson v North Cumbria Integrated Healthcare NHS Foundation Trust, ET2401798/2017
Facts of the case
The claimant was employed part-time as a community nurse, with a longstanding arrangement of working on fixed days. The Trust introduced a new flexible working policy which required the claimant to work occasional weekends, with notice. The claimant was unable to comply with these new requirements due to her caring responsibilities, and she was eventually dismissed.
Original tribunal decision and appeal to the EAT
The claimant brought claims of unfair dismissal and indirect sex discrimination against her employer which were both dismissed by the ET. The tribunal held that there was no evidence that the ‘provision, criterion or practice’ (PCP) of requiring nurses to work flexibly put women at a particular disadvantage to men and in any case, the application of the PCP was a proportionate means of achieving the Trust’s legitimate aim of providing a safe and efficient service.
The Employment Appeal Tribunal (EAT) allowed the claimant’s appeal in 2021. It held that when considering whether women as a group were disadvantaged by the PCP, the tribunal should have taken into account:
- all community nurses employed by the Trust (who were subject to the same requirement), not just those in the claimant’s team
- 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 (referred to as the “childcare disparity”).
The EAT remitted the case to be reheard by the tribunal. Read our case summary of the original ET decision and the EAT decision here.
Employment tribunal’s decision
Upon remission, the tribunal upheld its original decision that the claimant did not suffer from indirect sex discrimination, nor was she unfairly dismissed. The Trust’s requirement for nurses to work flexibly was a proportionate means of achieving the Trust’s legitimate aim in providing care to the community 24-7, managing the team’s workload and avoiding the cost of using senior (more expensive) nurses at the weekend.
On the facts, the claimant’s disadvantage was low as she did in fact have some help available for childcare at the weekends. She was not required to comply fully with the flexible working arrangement as the Trust was willing to relax the number of weekends and bank holidays that she worked.
In reaching its decision, the tribunal noted that where costs are the primary driver of a PCP, the employer’s financial pressures must be examined and consideration given to whether it was possible to address them in a non-discriminatory way. The tribunal did not find it necessary for the Trust to produce specific statistical data; witness evidence was sufficient.
The Birketts view
The tribunal did not find on the facts of this case that the claimant was discriminated against due to her sex (or unfairly dismissed). However, tribunals will often still find that employers’ requirements relating to working hours (whether fixed, or flexible as in this case) put women at a particular disadvantage compared to men. To avoid a finding of indirect sex discrimination, an employer must show that such disadvantage is objectively justifiable. The Trust clearly had enough evidence to meet that test.
The employer in this case had various policies to support work-life balance and flexible working, but helpfully the tribunal stated that such aims, although common in modern workplaces, cannot be interpreted too strictly. Sometimes an organisation’s needs as a whole must prevail.
Making changes to working hours and patterns is often controversial, and it is important for employers to clearly establish the rationale for making such changes and properly consult with employees well in advance, before attempting to introduce them.
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 October 2023.