Employment Tribunals must take childcare disparity (between men and women) into account when reaching decisions in indirect sex discrimination cases.
An NHS community nurse has recently won her appeal in the Employment Appeal Tribunal in what is being described as a landmark ruling for working mothers. Mrs Dobson was dismissed by North Cumbria NHS Trust when she was unable to meet a requirement to work at weekends because of childcare commitments. Although initially unsuccessful in her claims of unfair dismissal and indirect sex discrimination in the Employment Tribunal, she won her appeal in the Employment Appeal Tribunal where the Judge stated that Employment Tribunals must take childcare disparity (between men and women) into account when reaching decisions in indirect sex discrimination cases.
Indirect discrimination occurs where an employer applies an apparently neutral policy or practice to everyone but, in practice, that policy or practice disadvantages a group of people who have a particular protected characteristic (in this case, sex).
If an individual with that characteristic is put at a disadvantage by the policy or practice, then this will be indirect discrimination unless the employer is able to objectively justify it.
The statutory definition is found in section 19 of the Equality Act 2010. Indirect sex discrimination occurs where:
– A applies to B a provision, criterion, or practice (PCP).
– A applies (or would apply) that PCP to persons not of the same sex as B.
– The PCP puts or would put persons of B’s sex at a particular disadvantage.
– The PCP puts or would put B at that disadvantage.
– A cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.
A typical example of where a potential indirect sex discrimination claim could arise is where an employer asks a female part time employee to work full time. The requirement to work full time (the “PCP”) could disadvantage women as a group, since women in society in general bear a greater part of domestic and childcare responsibilities than men and are more likely to want (or need) to work part time.
Unless the employer can objectively justify the need for a full-time worker to do the job, this will amount to indirect sex discrimination.
The case in question concerned the proposition, mentioned above, that women are more likely to be child carers than men and whether tribunals should take judicial notice (i.e., take it a matter of fact without hearing evidence on the issue) of this childcare disparity in the context of an indirect sex discrimination claim where a woman claims that a PCP that disadvantages those with childcare responsibilities puts women at a particular disadvantage compared to men.
It is worth pointing out that the tribunals are no strangers to the “childcare disparity” proposition in indirect sex discrimination cases and that, in fact, many cases have taken judicial notice of the proposition that women are more likely to bear the greater responsibility for childcare than men.
Mrs Dobson was employed by North Cumbria NHS Trust (the “Trust”) as a community nurse. She has three children and two of them are disabled. Due to her childcare responsibilities, she worked only two days a week, on Wednesdays and Thursdays.
In 2016, the Trust reviewed the working arrangements of its community nurses and asked Mrs Dobson to work flexibly, including working the occasional weekend.
Mrs Dobson informed the Trust that she was unable to accommodate the request because of her caring responsibilities. As a result, on 26 April 2017, in the face of Mrs Dobson’s refusal to agree to the new working arrangements, the Trust gave her notice to terminate her employment. Her employment ended on 19 July 2017.
Mrs Dobson brought claims for unfair dismissal, victimisation, and indirect sex discrimination against the Trust. For the purposes of this article, the focus is on her indirect sex discrimination claim.
Mrs Dobson argued that the Trust applied a provision, criterion, or practice (PCP) which put women, and which put her, as a female employee, at a particular disadvantage when compared to men on the basis that women are more likely to be child carers than men. The PCP was the Trust’s requirement for community nurses to work flexibly including at weekends – a requirement which Mrs Dobson could not meet because of her childcaring commitments.
Her claims were all dismissed by the Employment Tribunal. In relation to her claim of indirect sex discrimination, the Employment Tribunal said that her claim failed because Mrs Dobson had not produced evidence to support the argument that the PCP in question (the requirement that community nurses work flexibly including at weekends) put women at a particular disadvantage compared to men.
Mrs Dobson appealed to the Employment Appeal Tribunal. Her case was considered so important for working mothers that she was supported by the charity, Working Families, which helps working parents find a better work life balance.
Mrs Dobson raised a number of grounds of appeal in relation to the Employment Tribunal’s ruling on her claim of indirect sex discrimination. The following were the key grounds of appeal:
- that the Tribunal made a mistake in law by comparing her (for the purposes of deciding group disadvantage) with a small pool consisting only of the few people in her team. The pool for comparison, Mrs Dobson argued, should have been the Trust as a whole. By looking only at the small team that she worked in, Mrs Dobson argued, this produced an unrepresentative pool in terms of childcare responsibilities.
- that the Tribunal erred in law by finding that she had to produce some evidence demonstrating that women as a group were disadvantaged by the requirement to work flexibly, including at weekends. This was a matter, she argued of which the Tribunal should have taken “judicial notice”. In other words, they should have accepted it as fact without needing it to be proved.
The Employment Appeal Tribunal upheld each of the above grounds of appeal.
In relation to the first ground of appeal mentioned above, the Judge said the Tribunal did make a mistake by limiting the comparison to those in the team.
The PCP was the requirement for all community nurses to work flexibly, including weekends, and the tribunal should have identified a pool comprising all persons affected by this PCP. As a matter of logic, that pool was all community nurses.
In relation to the second ground of appeal (the key ruling in the case) the Judge referred to numerous other cases where it had been accepted as fact that women were more likely than men to bear the greater responsibility for caring for the family and that this may limit their ability to work certain hours.
The Judge said that “whilst things may have progressed in that men do now bear a greater proportion of child caring responsibilities than they did decades ago, the position is still far from equal”.
As a result, the Judge held that the childcare disparity between men and women was a matter of which judicial notice must be taken into account where relevant. The Tribunal was wrong to dismiss Mrs Dobson’s claim of indirect discrimination because of the lack of direct evidence of group disadvantage.
The Employment Appeal Tribunal remitted the case back to the tribunal for the claims of unfair dismissal and indirect sex discrimination to be heard again.
Points to note and action to take.
Perhaps at first glance, the ruling in this case does not appear particularly revolutionary in terms of its future practical effect. As mentioned, the tribunals and courts have, in many cases, taken judicial notice of the childcare disparity. Also, many employers will be very aware of the inherent risk of an indirect sex discrimination claim when making changes that may impact those with childcare commitments.
However, this is the first time that the Employment Appeal Tribunal has said that judicial notice must be given to it in relevant indirect sex discrimination cases. As decisions of the Employment Appeal Tribunal are binding on the lower tribunals, this means that in the future all tribunals must accept as fact the childcare disparity between men and women where it is relevant in a case.
The ruling will make it easier for women to bring claims of indirect sex discrimination relating to working hours/patterns. There will be no requirement for a woman to adduce evidence of the childcare disparity when arguing that they are more disadvantaged than men by a practice or policy that requires them to work certain hours.
However, it is worth mentioning that it will not necessarily be the case that a particular rule or practice will disadvantage women with childcaring responsibilities in the context of proving a “group disadvantage”, although many will, such as a requirement to work weekends, nights, or variable hours.
In addition, even where a rule or practice does disadvantage women with childcaring responsibilities, it is open to the employer to argue that the rule/practice is justifiable on objective grounds. Note that in Mrs Dobson’s case, the case is going back to the Tribunal to consider whether the Trust can objectively justify its requirement that its community nurses must work flexibly.
Many employers will already be aware of the need to consider the childcare disparity when making decisions or introducing changes (typically to working patterns) that are likely to disadvantage those with childcare responsibilities. What this ruling does is highlight how important it is that employers focus at an early stage on their reasons for wanting to introduce the policy or requirement (whatever the case may be) that is going to have this disadvantageous impact on women. Employers need to be able to objectively justify such decisions. This includes not only carefully considering their reasons for wanting to take the particular action but also looking at other reasonable alternatives (alternatives that will not have the effect of disadvantaging female employees) and consulting with the affected employees.
All deliberations, discussions and consultations should be documented in case the employer’s actions are challenged and they are asked to explain why they made the decisions they did. Ill-thought through rules, policies or practices that disadvantage working mothers will put employers at greater risk of indirect sex discrimination claims.