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Weekend working woes for Cumbrian nurse

A nurse who rejected proposed changes to her working hours due to her childcare responsibilities was dismissed by North Cumbria Integrated Care NHS Foundation Trust.  The changes included a requirement to work some weekends.  The Trust offered to re-engage her on new terms which she declined.

The Employment Appeal Tribunal considered the issue of whether women are less likely to be able to accommodate certain working patterns than men due to their caring responsibilities.

Dobson v North Cumbria Integrated Care NHS Foundation Trust

Mrs Dobson was employed by the North Cumbria Integrated Care NHS Foundation Trust as a Band 5 community nurse.  Her team at the time of her dismissal was made up of nine women and one man.

Mrs Dobson has 3 children, 2 of whom are disabled.  Following a flexible working request, she worked 15 hours per week over Wednesday and Thursday with childcare arrangements in place over those days.

In 2016, the Trust reviewed all existing flexible working arrangements and asked Mrs Dobson to work an occasional weekend (no more than once a month).  She said that she couldn’t because of her circumstances, and that she couldn’t work on any other days.  Ultimately, she was dismissed and an offer was made to re-engage her on new terms requiring her to work on additional days required by the Trust. The offer was declined and Mrs Dobson presented claims for unfair dismissal and indirect sex discrimination.

The Employment Tribunal dismissed her claims.  One of the findings in the indirect sex discrimination claim was that Mrs Dobson did not produce any evidence to support the argument that the requirement to work flexibly, including weekends, put women at a particular disadvantage compared to men.  The tribunal noted that other team members were able to manage this.

Mrs Dobson appealed to the Employment Appeal Tribunal (“EAT”).  Working Families, a charity concerned with barriers faced by those with caring responsibilities at work, intervened.  It referred the EAT to the fact that the Employment Tribunal could have taken judicial notice that women, because of their childcare responsibilities, were less likely to be able to accommodate certain working patterns than men.  Working Families referred the EAT to a number of cases where such judicial notice had been taken. Judicial notice can be taken by courts, where something is sufficiently well known, that it may be accepted without further enquiry usually or following an enquiry into reputable sources of reference.

Decision

The Employment Appeal Tribunal allowed the appeal.  They found that the Employment Tribunal had identified the wrong pool for comparison and enquiry should have been made as to group disadvantage across all community nurses across the Trust, not just Mrs Dobson’s team.  The EAT also found that the Employment Tribunal should have taken judicial notice of the fact that women, because of their childcare responsibilities, were less likely to be able to accommodate certain working patterns than men, rather than requiring Mrs Dobson to present evidence.  Mrs Dobson did not need to show that female community nurse working within the Trust would be disadvantaged by the requirement to work flexibly, including at weekends.

The EAT concluded that as a result of these errors, the Employment Tribunal’s findings in relation to justification were unsound and that Mrs Dobson’s claims would be sent back to the Employment Tribunal to be revisited.

Comment

This is an interesting case as it highlights that Employment Tribunals can take judicial notice that women usually shoulder the burden of caring responsibilities and therefore do not need to present evidence to show group disadvantage. However, it does not mean that any requirement to work flexibly will always put women at a disadvantage compared to men – some flexible working arrangements are preferred by people with caring responsibilities.  It also does not necessarily mean that the Trust discriminated against or unfairly dismissed Mrs Dobson.  The Trust may be able to show for example that it could justify the requirement for Mrs Dobson and her colleagues to work flexibly when the matter is reheard, in which case the indirect sex discrimination claim would fail. If her unfair dismissal claim is not tainted by discrimination, it may also not be successful.

Claims for indirect sex discrimination may become more prevalent as more employers move towards hybrid working and employers need to consider the business necessity of making changes to working patterns and whether they have a disproportionate impact on women.

If you have any queries in relation to varying terms and conditions of employment, discrimination or require assistance defending a claim for unfair dismissal or discrimination or have any other legal or HR queries please contact our employment team on 01228 552600 or 01524 548494.

 

This alert does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.

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