Can an employer’s working arrangements amount to indirect discrimination for employees who have childcare responsibilities?
In Dobson v North Cumbria Integrated Care NHS Foundation Trust 2023, Mrs Dobson (D), a community nurse, had three children, two of whom were disabled. As a result, she worked only Wednesdays and Thursdays for several years. However, her employer later required her to work flexibly - that is, to work additional days as and when needed, including weekends, for business reasons.
Since (D) was unable to comply with the new arrangement, she was dismissed. She subsequently brought a claim - among others - for indirect sex discrimination, arguing that the employer’s criteria disproportionately disadvantaged women due to their childcare responsibilities.
The matter went to the Employment Appeal Tribunal (EAT), who highlighted the need for employment tribunals to take judicial notice of the fact that more women than men tend to have childcare responsibilities, and so are more likely to be unable to comply with flexible working requirements.
Judicial notice is a legal doctrine that allows employment tribunals to recognise well known facts without one of the parties having to prove that it’s true.
The case was remitted by the EAT for an employment tribunal to re-determine whether the employer's decision was objectively justified as a proportionate means of achieving a legitimate aim under defence of justification as per section 19(2)(d) of the Equality Act 2010.
While an employer is not required to prove that there was no other way to achieve its objectives, the EAT in Birtenshaw v Oldfield [2019] IRLR 946 noted that tribunals must consider whether less discriminatory (or non-discriminatory) alternatives could have achieved the same legitimate aim. Additionally, in Heskett v SoS for Justice [2020] EWCA Civ 1487, the Court of Appeal clarified that a justification defence cannot rely solely on cost-saving, though cost may be a factor if accompanied by other legitimate aims.
In Dobson, the employment tribunal accepted that the employer (the NHS) had a legitimate aim: to provide continuous care to patients, 24/7, in a safe, effective, and efficient manner, while balancing workload and reducing reliance on more senior (Band 6 or 7) nurses during weekends. The tribunal found that cost-saving alone would not justify the policy, but it was not the “primary driver” in this case - rather, it formed a small part of broader service delivery considerations.
In assessing the proportionality of the provision, criterion or practice (PCP), the tribunal considered the severity of consequences if changes were not implemented, the importance of the aim, the extent to which the measure contributed to that aim, and whether a fair balance was struck between individual rights and community interests. The PCP must go no further than is reasonably necessary.
Although Mrs Dobson had some occasional Saturday childcare support from her husband, the tribunal recognised that relying on family - especially a partner - for such support could still constitute a disadvantage. However, given the limited nature of this reliance, the tribunal found the disadvantage to be at the lower end of the scale. Had she had no access to any childcare support, the level of disadvantage would have been higher.
In conclusion, the employer was found to have acted proportionately in applying the PCP to Mrs Dobson, and it met the burden of justification under section 19(2)(d) of the Equality Act 2010.
A similar issue arose in Marston (Holdings) Ltd v Perkins, where following a company restructure, the claimant’s role was altered to require significant travel. She argued that this placed her at a disadvantage due to childcare responsibilities and brought claims of indirect sex discrimination and unfair dismissal. The EAT again remitted the case for further consideration, noting that while childcare disparity supports the idea that women are more likely to have childcare responsibilities, it does not automatically mean that travel requirements disadvantage women. The tribunal was instructed to reconsider whether the employer could rely on the section 19(2)(d) defence.
Employers should also note that as of January 2024, the Equality Act was amended to extend protection against indirect discrimination by association. This means, for example, that a man with childcare responsibilities could now bring a claim if a policy that adversely affects women also puts him at a disadvantage because of his own caregiving responsibilities.
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