In discrimination claims on changes to working hours, tribunals must apply an established assumption of the "childcare disparity", recognising that women still have the primary responsibility for childcare and are less likely to be able to work certain hours. 

(Dobson v North Cumbria Integrated Care NHS Foundation Trust (EAT))

BACKGROUND

The Claimant was a community nurse working fixed days of the week.  She has three children, two of whom are disabled.  When the Trust introduced a new flexible working plan which required nurses to work occasional weekends, the Claimant was unable to comply because of her childcare responsibilities which led to her dismissal.  She brought claims for unfair dismissal and indirect sex discrimination.  The Employment Tribunal dismissed her claims.  On the indirect sex discrimination claim, it held that there was no evidence that the provision, criterion or practice (PCP) of requiring community nurses to work flexibly including some weekends put women at a particular disadvantage compared to men.  In any event, if it was wrong the Trust would be able to justify the PCP.  It was pursuing the legitimate aim of providing a safe and efficient service and it was proportionate by requiring all community nurses to work flexibly.

DECISION

The EAT allowed the appeal.  The Tribunal had failed to take judicial notice of the fact that more women than men tend to have childcare responsibilities making them less likely to be able to comply with flexible working requirements and the Claimant should not have been required to provide supporting evidence of the fact.  Although it is not a statutory requirement, the childcare disparity is a matter which has been taken into account by the courts for many years and is still current.  The EAT went on to comment that PCP to work flexibly including weekends as required by the Trust did not give the nurses the flexibility to choose their working hours or days and as such was likely to put the female staff at a group disadvantage.  The case was remitted for a rehearing.

IMPLICATIONS

This is a timely case for many businesses which are currently considering their future working patterns post lockdown. 

• This case has highlighted the need for Tribunals to continue to take the childcare disparity into account without the need for claimants to provide supporting evidence that factors relating to childcare put them at a disadvantage. 
• The EAT noted that the childcare disparity does not necessarily mean that any requirement to work flexibly will put women at a disadvantage compared to men and acknowledged that some flexible working arrangements are favourable to those with childcare responsibilities.
• While the childcare disparity may show that a PCP puts women at a disadvantage compared to men, the employer may nevertheless still be able to show objective justification for the indirect sex discrimination.
• Employers should consider childcare disparity when devising or implementing new policies or arrangements for different working patterns.  A more flexible approach by the employer acting fairly and reasonably could be the best policy and lead to positive outcomes for all.