Employment Appeal Tribunal confirms that judicial notice should still be taken of ‘the childcare disparity’ when deciding indirect sex discrimination claims08/07/21
In Dobson v North Cumbria Integrated Care NHS Foundation Trust, the Employment Appeal Tribunal (EAT) upheld the Claimant’s appeal against the Employment Tribunal’s (ET) decision to dismiss her claims of indirect sex discrimination on the basis that the ET failed to take judicial notice of ‘the childcare disparity’ (that women, because of their childcare responsibilities, were less likely to be able to accommodate certain working patterns than men).
D was a Band 5 community nurse at the Trust and she worked flexibly over two set days a week due to her childcare responsibilities. The Trust reviewed D’s flexible working arrangement and gave her notice that she may be required to work on other days, including weekends. D rejected the new arrangements which resulted in the Trust dismissing D. D rejected the offer of re-engagement on new terms and brought claims for unfair dismissal and indirect sex discrimination. D's claim of indirect sex discrimination relied on an assertion that women are more likely to have childcare responsibilities than men and that the Trust’s practice of requiring community nurses to work flexible shifts put women at a greater disadvantage than men.
The ET dismissed both of D’s claims. In relation to the indirect sex discrimination claim, it held that:
- The PCP (the provision, criterion or practice that was applied equally but had a disparate impact on individuals with a protected characteristic) was the Trust's requirement that its community nurses work flexibly, including at weekends. That PCP applied to men and women in D’s team.
- No evidence had been produced to support the argument that the PCP put women at a particular disadvantage compared to men. On the contrary, the other women and men in the team were able to meet the requirement. In the absence of any evidence demonstrating that women as a group were (or would be) disadvantaged by the requirement to work flexibly, the claim failed.
- If it was wrong in its primary conclusion, the Trust could justify the PCP. The Trust was pursuing the legitimate aim of achieving flexible working by all community nurses in order to provide a safe and efficient service. It was proportionate to do so by applying the PCP to all members of the team.
D appealed to the EAT.
The EAT’s decision
The EAT upheld D’s appeals on the basis that the ET had made the following errors when deciding her indirect sex discrimination claims which meant that the ET’s conclusions on both claims could not stand because:
- They had used the wrong pool for comparison: The starting point for identifying the pool was to identify the PCP. Once that was done, the identification of the pool itself would not be a question of discretion or of fact-finding but would be one of logic. In this case, the PCP was that community nurses were required to work flexibly (including at weekends). This requirement applied to all community nurses working in the Trust, so this was the correct pool for comparison; the ET should not have limited the pool for comparison to just D’s team.
- They had failed to take judicial notice of ‘the childcare disparity’: ‘The childcare disparity’ is a matter in respect of which judicial notice has been taken without further inquiry on several occasions in previous cases, as, although men are taking on more childcare responsibilities, the position is still far from equal. Therefore, the ET should have taken judicial notice of this point and should not have found that the claim failed because D had not presented any evidence demonstrating that women as a group were (or would be) disadvantaged by the requirement to work flexibly, including at weekends.
In light of these errors in deciding D’s claims, the ET’s finding that the PCP could be objectively justified (and that D’s dismissal was not unfair) could not stand. The EAT remitted the case back to the original ET panel to rehear the claims with reference to the correct pool for comparison.
What to take away
Although this case has been widely reported as a ‘landmark’ decision, in reality, it is simply a reminder of the well-established legal principles that ET’s should follow when deciding indirect sex discrimination claims.
What is important to note is that acceptance of ‘the childcare disparity’ by an ET will not automatically lead to a finding of indirect sex discrimination. The EAT was clear that ‘the childcare disparity’ does not necessarily mean that 1) any requirement to work flexibly will put women at a disadvantage compared to men, and, 2) if it does, that the employer will not be able to show that the PCP is not a proportionate means of achieving a legitimate aim.
We recommend that employers continue to be clear about (and, most importantly, document) why certain working patterns are required, be supportive of employees who need more flexibility, and ensure that informed decisions are made about whether any exceptions or adjustments to the standard working patterns can / cannot be accommodated in individual cases.
How Capsticks can help
Capsticks has significant experience of supporting employers to prevent discrimination in employment (by drafting equality and diversity policies, assisting with the review of service needs and implementing change, and delivering training to employees at all levels) and also to deal with any complaints that may arise (by conducting investigations, supporting decision makers and HR, and defending any employment tribunal claims).
For further information on how we might assist your organisation, please contact Victoria Watson, Alistair Kernohan or Chloe Edwards.