Are flexible working patterns prejudicial to working mothers?
Employment Matters e-update – July 2021
The Employment Appeal Tribunal has found that where a newly introduced flexible working policy involves weekend working, it is necessary to take the ‘childcare disparity’ into account – that being the likelihood that women are more likely than men to suffer a disadvantage as a result of childcare responsibilities.
Dobson v North Cumbria Integrated Care NHS Foundation Trust
The Employment Appeal Tribunal (EAT) has held that flexible working patterns which include a requirement to work one weekend a month could be considered to be prejudicial to working mothers. This is because women are more likely than men to bear the brunt of childcare responsibilities, and are therefore less likely to be able to do shifts at the weekend.
The Claimant, Mrs Dobson, was employed by North Cumbria Integrated Care NHS Foundation Trust as a community nurse between 2004 and 2016.
In 2008, following the birth of her first child, Mrs Dobson made a flexible working request to work the fixed days of Wednesday and Thursday. This was accepted by the Respondent.
In 2016, the Trust implemented a degree of flexible working across the organisation.
The review created a requirement for community nurses to work flexibly, including weekend working.
Mrs Dobson could not work at weekends due to her caring responsibilities for her three children.
She was dismissed as a result and brought claims of unfair dismissal and indirect discrimination before the Employment Tribunal.
The claims were dismissed by the Tribunal on the basis that Provision, Criterion or Practice (PCP) of requiring staff to work at least one weekend a month only applied to the Claimant’s team, and that within that team, all women (and the one man) could adhere to it, and therefore the PCP did not put women at a particular disadvantage when compared to men. Mrs Dobson appealed to the EAT.
The EAT decision
The EAT upheld the appeal.
They did not agree that the PCP only applied to the Claimant’s team, but rather they found that it applied to all community nurses, and as women are more likely to bear the brunt of childcare responsibilities, the requirement for all community nurses to work at least some weekends put women at a particular disadvantage when compared to men.
The EAT did not consider whether the Trust’s policy was capable of being justified or not, as the tribunal did not make a finding on this (having stopped at finding no particular disadvantage in the first place). The case has been remitted back to the tribunal for full consideration.
In reaching this decision, the EAT gave guidance as to the scope and application of the ‘childcare disparity’. It was found that the Tribunal had erred in not taking 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.