Requirement for community nurses to work some weekends justified despite childcare disadvantage

Background

In the case of Dobson v North Cumbria Integrated Care NHS Foundation Trust, the Employment Appeal Tribunal considered whether a requirement for community nurses to work flexibly, including at weekends, amounted to unlawful indirect sex discrimination.

The claimant was employed as a Band 5 community nurse and had worked a fixed pattern of 15 hours over Wednesdays and Thursdays for many years following the birth of her children, two of whom had significant additional needs. Her childcare arrangements were structured around that fixed pattern.

The Trust later introduced a policy requiring all community nurses to work flexibly, including occasional weekend shifts, in order to support the delivery of community services seven days a week. The claimant was asked to work weekends on a limited basis (around once a month), but she refused any change to her working pattern and insisted that her existing arrangement should continue indefinitely. After a lengthy consultation and grievance process, the Trust dismissed her.

The claimant brought claims for indirect sex discrimination and unfair dismissal. The tribunal initially rejected the discrimination claim, but the case was later remitted for reconsideration after it was held that tribunals should recognise the well-established disparity that women tend to bear greater childcare responsibilities than men.

EAT decision

On remission, the tribunal accepted that the requirement to work flexibly, including weekends, placed women at a particular disadvantage because of childcare responsibilities. However, it concluded that the policy was a proportionate means of achieving legitimate aims, including providing a seven-day community nursing service, distributing workload fairly across the team and reducing reliance on more senior nurses to cover weekend shifts.

The tribunal found that the claimant’s disadvantage was relatively limited in the circumstances. Although weekend working created childcare difficulties, the evidence suggested that occasional weekend shifts were manageable with family support.

The EAT upheld that decision. It confirmed that, when assessing whether a provision, criterion or practice is justified, tribunals must weigh the employer’s operational needs against the discriminatory impact on both the individual claimant and the wider group affected.

In this case, the tribunal had been entitled to conclude that the impact on the wider workforce was limited. All community nurses were required to work flexibly, none worked fixed days in the way the claimant did, and no other nurse had been forced to leave employment because of the policy.

The EAT also confirmed that the tribunal was entitled to take account of the claimant’s position during consultation. She had refused any compromise or alternative arrangement and had proposed only that she should be exempted from the rota entirely. While the burden of proving justification remains with the employer, the tribunal can consider whether the claimant has identified any less discriminatory alternative.

Finally, the EAT rejected an argument that the tribunal had considered the wrong requirement. The policy requiring flexible working including weekends was not materially different from a requirement to work occasional weekend shifts.

Learning points for employers

This decision illustrates how finely balanced indirect discrimination cases can be when flexible working and childcare responsibilities are involved. Even where a requirement places women at a particular disadvantage, it may still be justified if the employer can demonstrate clear operational needs and has properly considered the impact of the policy.

Employers should ensure that any changes to working patterns are supported by a clear business rationale and that meaningful consultation takes place. Evidence that a policy applies consistently across the workforce, and that other employees are able to comply with it, may assist in demonstrating that any disadvantage is limited.

The case also highlights the importance of exploring alternatives during consultation. While the burden of justification rests with the employer, a tribunal may take into account whether a workable alternative was proposed or whether the employee simply insisted on maintaining an existing arrangement indefinitely.

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For support or advice, please get in touch with Alice Mennell in our Employment team.