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Do claimants bringing claims for indirect sex discrimination have to adduce evidence that women are predominantly the primary source of childcare?
31 August 2021
Case Study
In the recent case of Dobson v North Cumbria Integrated Care NHS Foundation Trust the Employment Appeal Tribunal (EAT) confirmed that tribunals must continue to apply a well-established assumption that women have the primary responsibility for childcare in society and so are less likely to be able to work particular hours.
Ms Dobson worked as a community nurse and had, for a number of years, worked on Wednesdays and Thursdays only. When the NHS Trust she worked for introduced a new flexible working pattern following a review in 2016 which required all community nurses to work occasional weekends, she was unable to comply with that requirement due to childcare responsibilities: Ms Dobson has three children, two of whom are disabled.
The Trust ultimately dismissed Ms Dobson in 2017 due to her failure to comply and she subsequently brought claims for unfair dismissal and indirect sex discrimination.
Case Study
The tribunal dismissed her claims, holding that there was no evidence put before them that the provision, criterion or practice (PCP) of requiring all community nurses to work flexibly, including weekends, put women at a particular disadvantage as compared to men.
The tribunal then went so far as to consider whether, if they were wrong in finding that there was no evidence to demonstrate women were put at a disadvantage, the Trust was able to justify their actions. The tribunal concluded that, in this case, the Trust was in fact justified in introducing the new working pattern: they had a legitimate aim of achieving flexible working, in order to provide a safe and efficient service and it was proportionate to do so by applying the PCP to all members of the nursing team.
Ms Dobson appealed and the EAT allowed her appeal.
The EAT held that the tribunal had failed to take judicial notice of the fact that more women than men tend to have childcare responsibilities which in turn makes them less likely to be able to comply with flexible working requirements. This was a matter that had been taken into account by the tribunals for several years and which remained current and valid. The EAT further held that Ms Dobson should not have been required to provide supporting evidence of that fact.
This case highlights that employers should continue to consider potential changes to working arrangements in light of the traditionally held view that women are often the primary childcare providers and so are less likely to be able to comply with certain working patterns.
Employers, therefore, need to be mindful of taking a flexible approach when introducing new working patterns, in order to accommodate potential childcare responsibilities, whilst at the same time ensuring the needs of the business are met. This can often be a difficult balance to achieve and employers should, if in any doubt, seek legal advice on whether practices they’re looking to put into place might be indirectly discriminatory.
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