The claimant was a community nurse who brought claims relating to unfair dismissal and indirect discrimination based upon the characteristic of sex.  The issue arose as the respondent Trust had brought in a requirement for community nurses to work flexibly which included weekends. The claimant stated that she was unable to comply with this on the basis of caring responsibilities for her children (two of whom were disabled).  As a result of the refusal, she was subsequently dismissed.

The claim was that the provision, criterion or practice introduced requiring flexible work put her at a disadvantage compared to men on the basis of her childcare responsibilities. At first instance, the Tribunal held that the requirement was applied to all staff regardless of sex and that there was no evidence put forward outlining that the practice actually put women at a disadvantage. Therefore, her claim failed at first instance as there was no ‘group disadvantage’.  Additionally, the Tribunal found that even if it had to consider whether there was an objective justification for the practice it would have found that there was as it was a proportionate step to allow for the Trust to fulfil their obligations.

The claimant appealed the decision outlining that the Tribunal had failed to consider the meaning of the ‘group’ and the extent to which evidence would have to be adduced. In terms of the group used to determine the effect of the practice, the Tribunal only used the claimant’s team rather than all community nurses.   This was deemed inappropriate by the EAT.

The biggest point of contention was the extent to which ‘childcare disparity’ should be examined by the Tribunal.    The claimant outlined that she should not have had to adduce evidence of disadvantage as the Tribunal should take ‘judicial notice’ that women would be more likely to suffer a disadvantage when it came to childcare responsibilities.

The EAT outlined that judicial notice was not unchanging as it would change with society; however, the childcare disparity did exist citing women still bore a greater proportion of childcare.  Indeed, there was no requirement that the claimant cite ‘judicial notice’ for it to be considered.  Furthermore, it would not be a blanket approach easily allowing indirect discrimination cases but rather it would have to be examined between the practice and the effect it would have on those with childcare responsibilities.

The EAT, in examining this with the need to work flexibly (which did not give any flexibility to the employees) stated that the practice did disadvantage women on the basis of their childcare responsibilities.  Accordingly, the appeal was allowed, and indirect discrimination was found.

Practical Lessons

This case demonstrates the extent to which the Tribunal should be aware of ‘judicial notice’ when it comes to the childcare disparity which still exists between women and men.  The fact that there was no requirement for it to be expressly mentioned and that the Tribunal should essentially consider it on its own volition does give a greater deal of protection.

The Tribunal did note that there is a greater expectation in contemporary society that men will take on childcare responsibilities but there is still an imbalance which exists.   Therefore, the approach here does give a greater element of protection for women with childcare responsibilities.
https://www.gov.uk/employment-appeal-tribunal-decisions/mrs-g-dobson-v-1-north-cumbria-integrated-care-nhs-foundation-trust-2-working-families-intervenor-ukeat-slash-0220-slash-19-slash-la-v