The Employment Appeal Tribunal has handed down a useful case which serves as a reminder to employers that care must be taken in reaching decisions on working patterns in relation to employees with childcare responsibilities – timely given the current circumstances. The case is called Dobson and deals with the issue of ‘childcare disparity’ for women and how tribunals should apply judicial notice of the fact that women do bear more of the childcare burden than men, so limiting their ability to work certain hours. In recent times, as society and attitudes have changed, some people have questioned whether the childcare disparity still exists but this case makes clear it does and that tribunals should take judicial notice of it. The result? Welcome clarity for employment tribunals and litigants about what evidence women need to adduce in cases of indirect sex discrimination where working patterns conflict with childcare responsibilities.
People Management reports on this hailing the case as ‘a landmark ruling that will help protect the rights of working mothers by recognising women’s disproportionate childcare burden as a fact for future discrimination cases. In our view, that is overstating it. It’s not so much a landmark ruling as a re-statement of the current position which maintains the status quo.
The facts briefly. The claimant, Gemma Dobson, was employed part-time as a community nurse, working fixed days. She has three children, two of whom are disabled. The Trust decided to introduce a more flexible working pattern which included a requirement that community nurses work at weekends. Miss Dobson refused to work those hours due to her caring responsibilities and, ultimately, she was dismissed. She went on to bring a claim of indirect sex discrimination.
At first instance the employment tribunal dismissed her claim on the basis that, since all the other women in Miss Dobson’s team were able to work with the new flexible working requirement, including those with childcare responsibilities, the requirement did not create a group disadvantage, necessary for her claim. However, on appeal the EAT said the tribunal was wrong in limiting the comparison to just the team of nurses she was working with, finding that because the new flexible working policy was rolled out across the Trust, the pool of comparison should have included all of the Trust’s community nurses. The tribunal was also wrong to rule that the new flexible working policy did not create a group disadvantage because it did not recognise the childcare burden disproportionately faced by women. In other words, the tribunal should have taken judicial notice of that fact.
So, let’s consider how this case might affect flexible working requests. Anne Sammon joined me by video-link to discuss the case. I started by asking Anne for her view on how this case impacts employers:
Anne Sammon: “For employers, I don't really think the case necessarily changes the position that most employers had adopted which was, actually, where you refuse flexible working, or where you don't offer flexible working, there is a risk that that may disadvantage women, particularly, who have childcare responsibilities and therefore you need to properly have thought through what your justification is for taking that approach and be prepared to justify that if it's ever challenged. For me, the importance of this decision is more around, actually, tribunal practice and I think there had been some concern, following a case from 2012, which was called Hacking & Paterson v Wilson where Lady Smith in the Scottish Employment Appeal Tribunal had said, well, actually, I don't think that necessarily women are disadvantaged by a lack of flexibility because we've moved forward since some of those earlier cases were decided and therefore things are a bit better. This suggests that tribunals actually have to start from the assumption that a denial of flexibility is likely to have an impact on women with childcare responsibilities.”
Joe Glavina: “So presumably it is still open to the employer to try to objectively justify the indirect sex discrimination?”
Anne Sammon: “Absolutely. The key of most of these cases comes down to objective justification and that is showing what your rationale is for refusing the flexible working request and, importantly, whether you could have achieved that objective through another means that wouldn't have disadvantaged the employee in quite the same way. So, for example, if you've got a role that genuinely requires people to be at a particular workplace, and you have an employee who asks to work from home, then your justification would be as to the reasons why somebody has to be physically in that workplace. So, if you take retail for example, you can see it's quite difficult if you're operating a checkout to be anywhere other than the location of that checkout so that gives you a justification for your refusal in those circumstances. Now a lot of cases tend to be far more nuanced than that and it comes down to do we have a good business reason and have we, really importantly, thought through what the other options are, and that's what we call proportionality.”
Joe Glavina: “Presumably, this issue could affect men too. So, if a male employee’s flexible working request is turned down where a comparable female employee’s request would have been agreed. That could be a problem?”
Anne Sammon: “It’s definitely a risk. So, there's always been a bit of concern that indirect discrimination essentially favours women when it comes to childcare responsibilities because in order to bring an indirect sex discrimination claim about childcare responsibilities you have to be female because women tend to be more disadvantaged by the fact of childcare responsibilities and that means that men can't bring a claim via that route. But the argument has always been, well, if as an employer, you say, oh, we'll grant all flexible working requests to women and deny men's requests then that amounts to direct sex discrimination because you're treating women and men differently.”
Joe Glavina: “I can imagine line managers struggling with these concepts so what’s your advice to HR, Anne?”
Anne Sammon: “So the key is always what is your basis for turning this down because, setting the law to one side, if you deny someone's request for flexible working that has an impact about how they feel about the organisation about the likelihood of you being able to retain them in the longer term. So, the key has always been, and will always be, what is our justification and can we properly explain both to the employee and, if worst case scenario we end up in tribunal, to the tribunal, why it is that we couldn't accommodate this particular request.”
That decision of the Employment Appeal Tribunal is called Dobson v North Cumbria NHS Foundation Trust and we have put a link to it in the transcript of this programme.
- Link to case report: Dobson v North Cumbria Integrated Care NHS Foundation Trust