In the judgement of Dobson v North Cumbria NHS Trust, the Employment Appeal Tribunal (EAT) held that the Employment Tribunal (ET) failed to consider that women, because of their childcare responsibilities, are less likely to be able to accommodate flexible working, including working on the weekends, than men. The EAT referred to this as “childcare disparity” and accepted that the burden of childcare falls disproportionately on women, affecting their ability to adapt to certain working patterns.
After twenty years, the courts and tribunals have taken judicial notice of this disparity and the EAT concluded that the childcare disparity should have been accepted by the tribunal in Dobson v North Cumbria.
Mrs Dobson worked for the North Cumbria Integrated Care NHS Foundation Trust as a community trust. She was working two consistent days a week, but following a review, she was asked to work flexibly, including at weekends. Mrs Dobson was unable to commit to this arrangement because of her caring responsibilities for her three children, two of whom are disabled.
Mrs Dobson’s employment was terminated, and she subsequently bought indirect sex discrimination, unfair dismissal, and victimisation claims. The ET dismissed her claims but she subsequently appealed with the help of Working Families, who intervened and raised the issue of whether the ET should have taken judicial notice of childcare disparity between men and women.
Recently, the EAT found that the ET had erred in limiting the pool for comparison to the team in which the claimant worked and instead confirmed the appropriate pool was all community nurses across the Trust. The EAT also found the ET to have erred in finding no group advantage. The ET should have taken judicial notice of the fact that women, because of their childcare responsibilities, are less likely to be able to accommodate flexible working patterns. The EAT’s conclusions meant that the ET’s decision needed to be reconsidered.
A similar decision was made by the EAT in Hughes v Progressive Support Limited where Mrs Hughes’s employment was not terminated, but her employer said that her contract would be changed to a zero-hours contract if she did not work the hours her employer requested. The EAT found there was indirect sex discrimination if an employer asks an employee to work certain hours, regardless of their childcare responsibilities, even if no penalty was imposed against the employee.
The recent case law makes it clear that certain working patterns and associated rules imposed by employers can disproportionately impact certain groups. Employers will now need to be conscious of how the issue of childcare disparity can (disproportionately) affect certain groups of its employees.
For any assistance with this issue or any employment-related matter, please contact our Head of Employment Ilinca Mardarescu.