Employment Law Case Update: Indirect Discrimination Based on Gender and Unfair Dismissal

Flexibility is one of the top benefits that employees are now looking for as an outcome of the Covid-19 pandemic; employers who don't consider this or follow a correct procedure could face not only losing a valued employee but also the Employment Tribunal.  The same could be said for employers who attempt to force flexibility on their employees  Today, our Employment Law team reviews to the case of Mrs G Dobson v North Cumbria Integrated Care NHS Foundation Trust 2021 in which the employer dismissed an employee who, due to her situation at home, was not able to work flexible shifts.

Mrs Dobson was a community nurse for the Trust, working fixed days. In 2016, the Trust changed its policy and required community nurses to work flexibly, including during weekends if required. Mrs Dobson was unable to work weekends as she had to care for her three children, two of whom were disabled. When she told her employer that she would not be able to work flexibly she was dismissed.

Mrs Dobson subsequently brought claims for indirect discrimination based on sex and unfair dismissal against the trust.

The Employment Tribunal (ET) found that the Trust had a provision, criterion or practice (PCP) of requiring nurses to work flexibly, including on weekends, but that there was no evidence that this PCP put women at a disadvantage compared to men. Relevant to this decision was the fact that all of Mrs Dobson’s colleagues, most of whom were women with children, were all able to meet the new flexible working requirement. The ET consequently dismissed Mrs Dobson’s claims.

Mrs Dobson appealed to the Employment Appeal Tribunal.   

The EAT accepted the ET’s finding that the Trust had a PCP of requiring nurses to work flexibly, including on weekends. However, the EAT found that the ET had improperly limited the pool of comparison to just the team in which Mrs Dobson worked. As the PCP applied to all community nurses working for the Trust, the correct pool of comparison was all community nurses across the Trust.

The ET also erred when it rejected Mrs Dobson’s claim on the basis that there was no evidence of group disadvantage. The EAT noted that women still often bear the majority of childcare responsibilities and that this limits their ability to accommodate certain work patterns. “The childcare disparity,” the judgment read “is so well known in the context of indirect discrimination claims and so often the subject of judicial notice in other cases that it was incumbent on the tribunal, in the circumstances, to take notice of it here.”

The EAT remitted the case back to the ET to determine whether Mrs Dobson had been subject to sex discrimination and whether she had been unfairly dismissed.

This ruling could impact future discrimination cases brought by women that involve work patterns that conflict with childcare responsibilities. This ruling by the EAT means that future tribunals will need to take judicial notice of the fact that women tend to have greater childcare responsibilities than men, and that this affects the hours they are able to work. While the employee will still need to produce evidence that the group disadvantage is made out, they will not need to produce evidence of this disparity. 

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.