Employment Law Cases
Indirect discrimination and the 'childcare disparity'
Dobson v North Cumbria Integrated Care NHS Foundation Trust
Tribunals must accept as fact that women still bear the primary burden of childcare responsibilities and this hinders their ability to work certain hours.
Ms Dobson was 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. Ms Dobson couldn’t comply with this requirement due to her caring responsibilities, and she was eventually dismissed. A tribunal dismissed her claims for unfair dismissal and indirect sex discrimination. In relation to the indirect sex discrimination claim, the tribunal held that the claim failed because there was no evidence that the requirement for community nurses to work flexibly including at weekends caused particular disadvantage for women compared to men. Everyone else in Ms Dobson’s team, including the eight other women, was able to comply with the PCP. In any event, the tribunal concluded that if it were wrong about the lack of group disadvantage, the trust would have been able to justify the new weekend working requirement because it 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. Ms Dobson appealed (with Working Families, a charity concerned with barriers faced by those with caring responsibilities at work, intervening).
The appeal was allowed.
Firstly, when considering the question of whether women as a group were put at a disadvantage by the PCP, the tribunal should have considered all community nurses employed by the trust (and who were subject to the same requirement), not just those in Ms Dobson’s team. Secondly, the tribunal had failed to take judicial notice of 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.
Looking at the case law, the EAT considered that two points clearly emerged:
- women bear the greater burden of childcare responsibilities than men which can limit their ability to work certain hours – this is a matter in respect of which judicial notice has been taken without further enquiry on several occasions (the ‘childcare disparity’), and
- that while this childcare disparity is not a matter which statute requires to be considered, it is one that has been noticed by the courts at all levels for many years.
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 Ms Dobson herself. The case was remitted to be reheard.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2021/0220_19_2206.html
The fact that tribunals must take note of the childcare disparity helps women bringing indirect discrimination claims – as they don’t (depending on the rule or practice at issue) need to present evidence showing group disadvantage. It doesn’t however mean that any requirement to work flexibly will always disadvantage women compared to men. It also didn’t mean in this case that the trust had discriminated against Ms Dobson as it may be able to show that the flexible working requirement is justified when the case returns to be reheard. Also remember that ‘disadvantage’ doesn’t mean ‘impossible’ - women can still be disadvantaged by a PCP relating to working patterns, where they could comply, but it would cause them difficulties.