Judicial notice allows courts and tribunals to accept widely recognised facts without requiring specific evidence. In employment law, tribunals can take judicial notice of the childcare disparity, namely the fact that women are more likely than men to have primary caring responsibilities.
In Marston (Holdings) Ltd v Perkins, Mrs Perkins worked as Head of Enforcement at Marston. Following a company restructure, her role was altered to include a requirement to travel significant distances. She argued that this requirement placed her at a disadvantage due to her childcare responsibilities and brought claims of indirect sex discrimination and unfair dismissal.
The employment tribunal upheld both claims. It found that the travel requirement amounted to a provision, criterion, or practice (PCP) that put women at a disadvantage because women are more likely to have primary childcare responsibilities. The employer’s justification—that the policy was necessary for business efficiency and staff morale—was rejected.
On unfair dismissal, the tribunal concluded that redundancy was not the real reason for Mrs Perkins' dismissal. Instead, it found that the employer imposed the travel requirement as a way to remove her from the business.
The employer appealed, arguing that the tribunal had misapplied judicial notice, failed to properly assess justification, and wrongly reconsidered the reason for dismissal.
The EAT allowed the appeal and remitted the case for reconsideration. It found that while judicial notice is a useful tool, tribunals must still assess the actual impact of a policy in the workplace. In this case, the tribunal went too far in assuming that all women in Mrs Perkins’ situation would be unable to meet the travel requirement without considering whether there was real-world evidence to support that conclusion.
The EAT also found that the tribunal had not properly assessed whether the travel requirement was objectively justified. While employers can impose workplace requirements, they must be able to show that the policy is proportionate to achieving a legitimate business aim. The tribunal failed to conduct a full proportionality assessment, meaning the employer did not have a fair opportunity to justify the policy.
On unfair dismissal, the EAT ruled that the tribunal had wrongly allowed Mrs Perkins to withdraw her earlier concession that she was dismissed for redundancy without giving the employer a chance to respond.
The EAT’s decision reinforces that while judicial notice remains relevant in discrimination claims, it does not remove the need for a full analysis of how a policy impacts employees in practice. Employers should carefully assess workplace policies, ensure clear justifications, and document decisions thoroughly to minimise legal risks.