The Employment Appeal Tribunal (“EAT”) in Dobson v North Cumbria NHS Trust ruled that women still have a greater burden of childcare than men (“the childcare disparity”) and a Tribunal could and should continue to rely on this knowledge as fact (without it needing to be proven by the Claimant). This childcare disparity concept has been taken as fact without further inquiry on many occasions in the context of indirect discrimination claims and was ruled that it should have been in the present case as well.
What happened?
Mrs Dobson was employed as a community nurse, but due to childcare responsibilities of three children (two of whom are disabled) she worked only two days a week for several years. This long-standing working arrangement was revoked by her employer in their bid to introduce flexible working across the whole trust. This required Mrs Dobson (and her team) to work various alternative, unpredictable hours, including having to work one weekend every so often. Mrs Dobson was unable to comply with this requirement and subsequently was dismissed. She submitted claims for unfair dismissal and indirect sex discrimination, but both were dismissed by the Tribunal. This led to her appeal to the EAT.
The EAT overturned the decision made by the Tribunal, claiming that ‘judicial notice’ should have been given to the fact that women bear a greater burden of childcare responsibility than men. No evidence should need to be adduced by claimants bringing indirect sex discrimination claims in the Tribunal to assert this point; it is well-known and should be a given.
In this respect, women can be unfairly disadvantaged by the requirement to work flexible hours; this could give rise to a claim for indirect sex discrimination. The Tribunal therefore erred in not accounting for the disparity as a fact, and treating Mrs Dobson’s case as unsupported by evidence. The Tribunal should have taken “judicial notice” of the disparity, without the Claimant needing to put forward evidence to substantiate the greater burden faced by her.
What does this mean for individuals and employers alike?
The EAT’s decision gives greater certainty for women with childcare responsibilities to bring indirect sex discrimination claims successfully where their employer imposes a requirement to work flexible, unpredictable and uncertain patterns. As for employers, greater consideration must be made before implementing policies that may disadvantage a group based on working flexible patterns, ensuring that the parameters are wide enough to account for employees with childcare responsibilities. This is particularly relevant going forward, as many workplaces have moved, and plan to move, towards flexible working schedules after the COVID-19 pandemic.
It should be noted that the EAT acknowledged that the matter was not resolved. As societal norms and times evolve, it is likely that the Tribunals will be expected to evolve alongside. Whilst the childcare disparity concept was evidentially true decades ago, the disparity in current day is less clear-cut, but still far from equal.
If you are an employer or individual with further queries on what this may mean for you or your employees, we encourage you to contact our experienced employment team for specialist advice and assistance on flexible working policies and equality provisions. Alternatively, contact us here or by email: employment@curzongreen.co.uk.