On the case - Recognising the childcare disparity

Tuesday 13 July 2021

The balance between work and home life can be difficult to manage, especially for workers in health and social care, where there is often a requirement for services to be provided outside normal working hours.

The recent case of Dobson v North Cumbria Integrated Care NHS Foundation Trust, which on appeal, overturned an Employment Tribunal finding, has been widely publicised but in legal terms does not break any new ground.

However, this case serves as a helpful reminder that employers should bear in mind the well-established ‘childcare disparity’ when considering whether to implement flexible working, or change employees’ working hours. 

The key issue in this case was whether women are more disadvantaged than men by a requirement to work ‘flexibly’ (including at weekends) to meet the needs of an employer. If they are, then it is potentially discriminatory to impose that requirement on them.

Dobson v North Cumbria Integrated Care NHS Foundation Trust

Ms Dobson was employed by the Trust as a community nurse. She has three children, two of whom are disabled. For a number of years she worked Wednesdays and Thursdays each week.

Following a review in 2016 of all community nurses across the Trust, Ms Dobson was asked to work occasional weekends, no more than once a month. Ms Dobson refused, citing her childcare responsibilities, and was ultimately dismissed by the Trust in July 2017.

Ms Dobson brought claims against the Trust in the Employment Tribunal for unfair dismissal, victimisation, and indirect sex discrimination. Ms Dobson’s claims were all dismissed by the Employment Tribunal.

The Tribunal ruled that it was impossible for the Trust to ignore the need for all employees to work flexibly and that it had considered all reasonable alternatives before reaching the last resort of dismissal. This included giving Ms Dobson several weeks’ notice of any additional days to be worked outside of her usual working pattern. Ms Dobson had rejected all of the Trust’s suggestions.

Notably, Ms Dobson’s indirect sex discrimination also failed. Although the Tribunal recognised that the Trust’s requirement that its community nurses work flexibly, including at weekends) put Ms Dobson at a disadvantage due to her personal circumstances, it held there was no evidence that women as a group were (or would be) particularly disadvantaged by that requirement. The tribunal noted that all other members of Ms Dobson’s team, comprising eight other women and one man, were able to comply with the Trust’s requirement. 

The Tribunal ruled that, even if the requirement did put women at a particular disadvantage, it was objectively justifiable as a way of achieving flexible working by all nurses across the Trust, to provide a safe and efficient service. 

Ms Dobson appealed to the employment appeals tribunal (EAT). The EAT decided that the Tribunal had approached the ‘group disadvantage’ question too narrowly by comparing the impact of the requirement only on the men and women in Ms Dobson’s team. The pool should have been all community nurses across the Trust who were affected by the flexible working requirement, not just those in Ms Dobson’s team.

The EAT found that the Tribunal had also erred in rejecting Ms Dobson’s claim that the flexible working requirement adversely affected women as a group. Because of childcare responsibilities, women are less likely to be able to accommodate certain working patterns than men.

The EAT noted this childcare disparity between men and women has been judicially noted in many other employment cases without further enquiry. This should have been taken into consideration in this claim, which the Tribunal failed to do.   

What does this mean for employers?

The fact that Tribunals can take judicial notice of the childcare disparity does not necessarily mean that group disadvantage will be established in every case involving flexible working.  This will depend on the facts of the case and the requirement in question.  

For example, a requirement to work certain hours such as weekends or nights would mean that group disadvantage would be highly likely to follow as a result of the childcare disparity. However, a more flexible requirement, such as a requirement to work a certain number of hours within a fixed window, may not establish group disadvantage. 

In situations where the childcare disparity is in play, employers should seek to implement more flexible arrangements in consultation with employees to find workable solutions.  

Guy Bredenkamp is a Partner and employment law expert at DAC Beachcroft.

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