NHS employer did not discriminate by dismissing female nurse for refusing to work weekends

The claimant in Dobson v Cumbria Partnership NHS Foundation Trust had a long-standing agreement to work two fixed days a week. Her working arrangements were largely due to her caring responsibilities for her three children, two of whom have special educational needs. The Cumbria Partnership NHS Foundation Trust (the Trust) sought to introduce more flexible working for its community nurses. Broadly, the reason for the change was to cater for evolving community nursing needs which had shifted over time.

The requirement to work flexibly in order to provide effective community nursing care included a requirement to work during weekends. The claimant did not agree to work on weekends because of her childcare responsibilities. The Trust sought to explore this with the claimant, offering her the option to work occasional weekends only, and on notice. The claimant refused to agree, and indeed did not agree to any change to her working pattern.

The claimant was dismissed and brought claims against the Trust for unfair dismissal and indirect sex discrimination. This summary focuses on the indirect sex discrimination claim, which was remitted to the Tribunal following a successful appeal, where the Employment Appeal Tribunal (EAT) found that the Tribunal had failed to take judicial notice of the "childcare disparity" - namely that women, because of childcare responsibilities, are less likely to be able to accommodate certain working patterns than men.

The Tribunal's decision

The Tribunal dismissed the remitted claim. The main purpose of the rehearing was for the Tribunal to consider whether the provision, criterion or practice (PCP) applied by the Trust was a proportionate means of achieving a legitimate aim.

The PCP was the requirement for community nurses to work flexibly, including at weekends, in order to provide care to patients in the community, balance workloads amongst the team and reduce staffing costs.

The Tribunal found that the PCP was objectively justified.  The Tribunal balanced the circumstances that prompted the Trust to introduce the PCP against the concessions it made to the claimant, and took into account findings of fact it had made in respect of the claimant's circumstances and childcare options. Taking all this into account, the Tribunal found that the PCP was a proportionate means of achieving a legitimate aim.

Learning points

In reaching its conclusion, the Tribunal was careful to emphasise that it does not dismiss the suggestion that having to work on occasional weekends could amount to a disadvantage for the claimant. However, having weighed the extent of that disadvantage against the Trust's reasonable needs to deliver its community care services, it found the Trust was objectively justified in imposing its requirement.

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