Tribunal Failed to Take Judicial Notice of 'Childcare Disparity' in Indirect Discrimination Case

The main reason for this decision is the fact that women are considered less likely than men to be able to accommodate flexible working patterns because of childcare responsibilities.

The Case

Mrs Dobson was employed by the North Cumbria Integrated Care NHS Foundation Trust (the Trust) as a community nurse and worked two fixed 15-hour days per week. Her working arrangements were largely due to her caring responsibilities for her three children, two of whom are disabled. In 2016, the Trust sought to introduce more flexible working for its community nurses, which would have included working on weekends. Given her circumstances, Mrs Dobson was unable to comply and was subsequently dismissed. She brought claims for unfair dismissal and indirect sex discrimination against the Trust.

What Counts As Indirect Discrimination?

Under Section 19 of the Equality Act 2010, indirect discrimination arises when: 

• A person (A) applies to another (B) a provision, criterion or practice (PCP)
• B has a protected characteristic
• A also applies (or would apply) that PCP to persons who do not share B's protected characteristic
• The PCP puts or would put persons with whom B shares the protected characteristic at a  particular disadvantage compared to others (group disadvantage)
• The PCP puts or would put B to that disadvantage
• A cannot show the PCP to be a proportionate means of achieving a legitimate aim

What Were the Employment Tribunal's Findings?

In relation to the indirect discrimination claim, the tribunal accepted that the Trust applied a PCP (namely requiring that its community nurses work flexibly, including at weekends) and it accepted that the PCP has been applied to all men and women in Mrs Dobson's team. However, it found that there was no evidence produced to support Mrs Dobson's argument that the PCP applied put women at a particular disadvantage as compared to men. This was particularly considered to be so given that all the other women in Mrs Dobson's team (and the one male in the team) were able to meet the requirement. The tribunal therefore concluded that, even though Mrs Dobson was personally placed at a disadvantage, the claim had to fail due to the lack of group disadvantage.

The tribunal also found that, if needed, the Trust would be able to justify the PCP by showing that it was pursuing the legitimate aim of using flexible working to provide a safe and efficient service and that it was using proportionate means of achieving the legitimate aim by applying the PCP to all members of the team.

Mrs Dobson appealed to the EAT.

The Appeal

The EAT allowed the appeal and found that the earlier tribunal had erred by limiting the pool for comparison to test group disadvantage to those nurses working in Mrs Dobson's team, instead of considering the effect on all community nurses within the Trust as a whole, to whom the flexible working requirement applied. A smaller pool, the EAT found, did not effectively test the indirect discrimination allegation being made due to the pool being potentially unrepresentative in terms of childcare responsibilities.

The EAT also held that the tribunal erred in failing to take judicial notice of the 'childcare disparity' (being the fact that women are more likely to be child carers than men), which case law has, on several occasions, taken into account without the need for further evidence from the claimant. The EAT cautioned that, although societal norms and expectations change over time, the position in terms of men and women's childcare responsibilities is still far from equal. The EAT therefore held that the tribunal erred in not taking judicial notice of childcare disparity and in treating Mrs Dobson's case as unsupported by evidence.

What the EAT referred to as childcare disparity does not however mean that any form of flexible working will put women at a particular group disadvantage. This depends on the PCP in question. In this case however, the requirement for community nurses to work flexibly, including weekends, as and when required by the Trust and not as and when the nurses chose to work (ie certain hours or days within certain parameters) was seen to result in a group disadvantage impacting women, meaning that the elements of indirect discrimination were made out, unless the PCP could be objectively justified by the employer. Accordingly, the case has been remitted to be reheard by the employment tribunal and we await a decision.

What Does This Mean for Employers?

The EAT's judgment highlights how judicial notice of childcare disparity is widely considered by the courts and will continue to be the case until men are considered to bear an equal proportion of child caring responsibilities to women. Although a requirement to work flexibly will not always put women at a disadvantage compared to men, employers should consider any PCP they wish to implement carefully in case group disadvantage is made out.

This is particularly pertinent during the COVID-19 pandemic, as more employers are contemplating different flexible working patterns for employees which experts claim could have unintended consequences for gender equality. To prevent this, it is important for employers to carefully consider and monitor flexible working arrangements to ensure that women are not disproportionally affected and to prevent any indirect discrimination claims being brought by female employees against their employers.

If you have any queries relating to discrimination claims or other workplace disputes, please contact Siân James in our Employment Law team on 0117 314 5331, or complete the form below.