UK: Flexible Working: Disparities In Childcare

Employment Appeal Tribunal rules that mothers should not be dismissed for refusing to work on weekends.

A mother who was dismissed by her employer for refusing to work weekends has won a 'landmark' appeal for working parents. The Employment Appeal Tribunal (EAT) has directed that going forward, tribunals must consider the issue of 'childcare disparity' where relevant.

Background

Gemma Dobson worked as a community nurse in Cumbria. In 2016, Ms Dobson's employer, Integrated Care NHS Foundation Trust North Cumbria, sought to introduce more flexible working. This included a requirement that community nurses were to work flexibly, including at weekends.

Ms Dobson made it clear to her employer that she was unable to do so, owing to her commitments to care for her three children, two of whom are disabled. Ms Dobson was subsequently dismissed on the grounds that she refused to work her dictated hours. Her employer declined to consider Ms Dobson's personal childcare responsibilities.

Ms Dobson proceeded to lodge claims of unfair dismissal and indirect sex discrimination with the Employment Tribunal (ET). Both claims were dismissed.

On appeal, the EAT held that the ET 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.

What does this mean in practice for employers?

Childcare disparity is a factor that employers should consider when they are making decisions about working hours.

In the words of Mr Justice Choudhury, childcare disparity means that women are more likely to find it difficult to work certain hours (eg nights) or flexible hours (the changes here dictated by the employer) than men due to childcare responsibilities.

In this instance, the arrangement was to 'work flexibly, including at weekends'. It was therefore not an arrangement whereby staff had any flexibility to choose their working hours or days within certain parameters. The EAT held that this requirement would result in a group disadvantage to women on the basis that women are more likely than men to be child carers.

Furthermore, the EAT outlined that it does not need to be impossible for an employee to comply with a working requirement before there is a disadvantage to women. There can still be a disadvantage even where compliance is possible but with real difficulty.

This is not the only recent case to emphasise caution around childcare arrangements when seeking to justify changes to working hours.

In Hughes -v- Progressive Support Limited UKEAT/0195/20 (heard in May this year), Ms Hughes was guaranteed 'considerate' hours in line with her childcare responsibilities by her employer. However, her employer briefly stopped offering Ms Hughes her 'considerate' hours and sought to implement a requirement for staff to work '24/7' in line with their service needs. Although Ms Hughes was not subjected to any sanction for being unable to work the hours offered to her, she still lost pay. Ms Hughes brought a claim of indirect sex discrimination to the ET, which was dismissed.

On appeal, the EAT confirmed in this instance that by requiring Ms Hughes to work whatever hours were allocated to her (similarly to Dobson), the employer had applied a provision, criterion or practice that amounted to unlawful indirect sex discrimination.

Dobson -v- North Cumbria Integrated Care NHS Foundation Trust

Summary

In light of the COVID-19 pandemic and with an increased focus on the delicate balancing act between childcare and work, both of these cases will be of particular note to employers looking to improve flexibility within their workforce.

In practice, this means that employers should identify any disadvantage caused by childcare disparity when amending working patterns or introducing a requirement to work weekends or evenings. Where such disparity exists, to mitigate the risk of a claim for indirect discrimination, the employer will need reasonable justification for any changes to working hours.