Is it indirect discrimination to dismiss an employee for refusing to work weekends?

Claim under the Equality Act for Sex Discrimination

An Employment Tribunal recently held in the case of Mrs Dobson v Cumbria Partnership NHS Foundation Trust [2023] 5 WLUK 624 that the “childcare disparity” did not prevent the dismissal of a female community nurse for refusing to work weekends from being proportionate.   

This case is a particularly poignant one as it was Mrs Dobson who, in 2021, successfully obtained a “landmark” judgment against the NHS Trust in the Employment Appeal Tribunal, whereby the Employment Appeal Tribunal held that Tribunals must take the “childcare disparity” between men and women into account when reaching decisions in indirect sex discrimination cases.  

The Law

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.   This is frequently referred to, in employment law, as the “childcare disparity”. 

Unless the employer can objectively justify the need for a full-time worker to do the job, this will amount to indirect sex discrimination.   

Since the judgment of the Employment Appeal Tribunal in the 2021 case of Dobson v North Cumbria Integrated Care NHS Foundation Trust UKEAT/0220/19, tribunals have to 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 it is claimed that a PCP disproportionately disadvantages women with childcare responsibilities compared to men.   However, the fact that the childcare disparity exists does not inevitably mean that a claim of indirect sex discrimination claim will succeed because it is always open to the employer to demonstrate that the PCP is proportionate. 

The Facts

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 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 (among other claims) a claim for indirect sex discrimination against the Trust.   She argued that the Trust applied a provision, criterion, or practice (PCP) which put her, and women generally, at a particular disadvantage when compared to men on the basis that women are more likely to be child carers than men.  That PCP, she argued, was the Trust’s requirement for community nurses to work flexibly including at weekends – a requirement which she could not meet because of her childcaring commitments.  

Mrs Dobson’s claim was dismissed by the first Employment Tribunal which held that she 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.  

She then appealed the Employment Appeal Tribunal which, as mentioned above, held that judicial notice should be taken by tribunals of the “childcare disparity” – namely, that women bear the greater burden of childcare responsibilities than men and therefore are less likely to be able to accommodate certain working patterns than men.  

The Employment Appeal Tribunal went on to find that the Trust’s requirement that its community nurses work flexibly did disadvantage women generally and put Ms Dobson at such a disadvantage.   The case was then remitted back to the tribunal to determine whether or not the Trust could show that its requirement was objectively justifiable.  

The Decision

The employment tribunal subsequently found that, although the Trust’s requirement for community nurses to work flexibly (the “PCP”) indirectly put Mrs Dobson at a disadvantage because of her sex, the requirement was nonetheless a proportionate means of achieving a legitimate aim.

The Tribunal accepted the Trust had a legitimate aim which was:

“the need to provide care to patients in the community, 24 hours per day, 7 days a week and to balance workload amongst the team and reduce the cost of having to use band 6 and 7 registered nurses on a weekend.”

Having established that the Trust had a legitimate aim, the next question for the Tribunal was whether the PCP was rationally connected to the legitimate aim.   In this regard, the Tribunal said that it was satisfied from the evidence produced by the Trust that, in order to achieve its aim of providing a safe, effective and efficient service to patients at home, the stretched NHS Trust required a high degree of willingness on the part of community nurses to work at weekends and on bank holidays.  

Turning to the issue of proportionality, the Tribunal weighed up the impact of the PCP on Mrs Dobson against the reasonable needs of the Trust and concluded that, on balance, the Trust’s PCP was a proportionate way of achieving its aim.  

It was relevant to the Tribunal’s decision making that the Trust had been willing to relax the number of weekends or bank holidays that Mrs Dobson would be required to work whereas Mrs Dobson remained steadfast in her refusal to work any weekends or bank holidays.   The Tribunal also found that Mrs Dobson had not proposed any alternative solutions to addressing the problem that the Trust needed to resolve.  The only solution she proposed was to be excluded from the flexible working rota – i.e. to keep her fixed working pattern unchanged into the future on an open-ended basis.   This, the Tribunal said was not a solution for the Trust and had it done this, it would have been vulnerable to complaints from other community nurses about unfair and, potentially, discriminatory treatment.   Taking these factors into account, the Tribunal concluded that the reasonable needs of the organisation justified the PCP.

Points to Note

The case is a useful reminder that Tribunals are required to accept as fact the childcare disparity between men and women where it is relevant in a case.   

This means that, in an indirect sex discrimination claim, there is no requirement for a woman with childcaring responsibilities to produce evidence of the childcare disparity if arguing that she has been more disadvantaged than a man due to a practice or policy relating to working patterns that she is unable to comply with or finds it more difficult to comply with due to those responsibilities.

However, as mentioned, even if a policy, practice, or requirement is concluded to operate in a way that disadvantages women over men, it is open to the employer to argue that the policy/practice/requirement is justifiable on objective grounds.   

As this case highlights, in deciding whether a policy or requirement is justifiable, the Tribunal will look carefully at the employer’s reasons for wanting to take the particular action but will also want to see evidence that the employer has looked at other reasonable alternatives (alternatives that will not have the effect of disadvantaging female employees) and has consulted with the affected employees. 

Full Judgement

You can read the full judgement of this case here: https://assets.publishing.service.gov.uk/media/64edb5576bc96d00104ed1af/Mrs_G_Dobson_v_Cumbria_Partnership_NHS_Foundation_Trust_-_2401798_2017_-_Reserved.pdf

Photo by Agence Olloweb on Unsplash