329: Flexible working: do women always need to be treated differently to men?

In the case of Dobson v North Cumbria Integrated Care NHS Foundation Trust (the Trust), the EAT has held that an employment tribunal should have taken into account the ‘childcare disparity’ between men and women when deciding an indirect discrimination claim.

Mrs Dobson was employed as a community nurse. She worked two fixed days a week in order to accommodate her caring responsibilities for her three children, two of whom are disabled. The Trust sought to introduce a more flexible working pattern which included a requirement for community nurses to work at weekends. Mrs Dobson was unable to commit to this arrangement because of her childcare responsibilities. She was subsequently dismissed and brought claims of indirect sex discrimination and unfair dismissal.

The employment tribunal dismissed Mrs Dobson’s claims, ruling that there was no evidence that requiring community nurses to work flexibly put women at a particular disadvantage as compared to men. All other female nurses in her team, and one male nurse, were able to meet this requirement. The Trust was also pursuing a legitimate aim of providing a safe and efficient service and requiring community nurses to work flexibly was a proportionate means of achieving that aim.

The EAT has now allowed Mrs Dobson’s appeal. When considering whether women were disadvantaged, the employment tribunal should have taken into account all community nurses employed by the Trust who were subject to the requirement to work weekends, not just Mrs Dobson’s team. The tribunal had also failed to take into account the fact that more women than men tend to have childcare responsibilities and women are therefore less likely to be able to accommodate flexible working patterns than men. Although the employment tribunal had not been expressly asked to take judicial notice of this childcare disparity, previous cases have established that the disparity can be accepted by tribunals without the need for further evidence. In this case, requiring flexible working, including at weekends, was likely to detrimentally affect female staff, including Mrs Dobson.

However, the EAT noted that the childcare disparity does not inevitably lead to the conclusion that any form of flexible working puts women at a particular disadvantage. This would depend on the particular requirement in question. In this case, the NHS Trust required flexible working, including at weekends, as and when needed. Community nurses had no flexibility to choose working hours or days within certain parameters. The relationship between the childcare disparity and the requirement for community nurses to work flexibly was therefore likely to result in a particular disadvantage to women.

The EAT’s conclusions mean that this case now needs to be reconsidered by the employment tribunal. The EAT also held that the tribunal’s findings on justification and unfair dismissal could not stand in light of the errors of law in respect of the indirect discrimination claim.

This case confirms that tribunals may accept that the burden of childcare falls disproportionately on women and will affect their ability to adapt to certain working patterns, without evidence of this childcare disparity needing to be produced. Particularly given the current climate, this illustrates the importance of considering the practical impact of changing working hours or other terms and conditions on certain groups of employees, in order to minimise the risk of direct or indirect discrimination claims.