Dobson

North Cumbria Partnership NHS Foundation Trust

Tribunal clarifies approach to flexible working and indirect sex discrimination in weekend working case involving childcare responsibilities.

The Claimant was employed by the Respondent as a community nurse. The Claimant has three children, two of whom are disabled. To facilitate childcare, she worked 15 hours per week spread over a Wednesday and Thursday. Following a review in 2016, the Respondent sought to introduce more flexible working. It introduced a requirement that community nurses work flexibly, including working at weekends. The Claimant was unable to comply because of her caring responsibilities. She was dismissed. She brought claims of unfair dismissal and indirect discrimination which were dismissed by the Tribunal. She appeals against that decision.

The EAT held that the Tribunal had erred in limiting the pool for comparison to the team in which the Claimant worked. The provision, criterion or practice (PCP) in this case was the requirement to work flexibly, including at weekends. That PCP was applied to all community nurses across the Trust. Logic therefore dictated that the appropriate pool for comparison was all community nurses. The Tribunal had also erred in rejecting the claim that there was group disadvantage on the basis that there was no evidence of the same. The Tribunal 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. These conclusions meant that, in the circumstances of this case, the findings on justification and unfair dismissal could not stand and would have to be revisited.

This case was remitted to the Tribunal by the EAT. The question at the heart of this case is whether the Respondent could show that the application of its PCP to all community nurses (including the Claimant) employed in the Trust was a proportionate means of achieving a legitimate aim for the purposes of section 19(2)(d) EQA 2010. The tribunal upheld its original decision that the Claimant had not suffered indirect discrimination or been unfairly dismissed. It found that her dismissal for refusing to work weekends was a proportionate means of achieving the Trust's legitimate aim of providing care in the community 24/7, balancing workload among the team and reducing the cost of using more senior nurses at the weekend.

In deciding that the Trust’s legitimate needs outweighed the disadvantage caused to the Claimant, the Tribunal cited a number of reasons, including:

• Mrs Dobson had adopted an intransigent position – refusing any change at all to her working hours; whilst the Trust had sought to reach a compromise by reducing the requirements on Mrs Dobson.
  
  
• Requiring Ms Dobson to work occasional weekends was the only reasonable measure open to the Trust.
  
  
• It was apparent that some family childcare was available on the days that she would have been required to work, meaning her disadvantage was at the “lower end of the scale”.
  
  
• The principle of allowing flexible working cannot be applied too strictly and an employer’s needs as a whole must sometimes prevail.

Preliminary hearing heard by the EAT on 3 September 2024.

Requiring weekend working can amount to indirect sex discrimination and Tribunals will carefully consider the evidence in each case to determine whether such arrangements are to achieve legitimate business aims and whether the imposition of weekend working is reasonably necessary to achieve those business aims.

To help reduce the risk of claims, employers should consider:

• Consulting with affected staff about any changes to working patterns, with a view to reaching agreement on changes and mitigating the consequences for affected staff where possible.
   
  
• Consider a equality impact assessment before instigating anti-social hours or weekend working.
   
  
• Consider “why” the working patterns are necessary (rather than just desired) and whether there are any reasonable alternative options. They will not be considered reasonably necessary if alternatives could have been put in place which would have less discriminatory impact.
   
  
• Put in writing the business reasons and why such measures are reasonably necessary, balancing the benefits for the employer against any detrimental impact the arrangements may have on protected groups of employees and demonstrating a commitment to managing those impacts where possible.

You can read the case in full here:
Dobson v North Cumbria Partnership NHS Foundation Trust [2023]