When can a working mother allege indirect discrimination over an employer’s provision, criteria or practice that impacts her childcare obligations?
Indirect Discrimination
Indirect discrimination in the context of the above question, arises when an organisation has a particular policy linked to a provision, criteria, or practice (pcp) that applies in the same way to both sexes, but which places one gender to a disadvantage because of their gender and the organization cannot objectively justify the (pcp) as a proportionate means of achieving a legitimate aim.
All that is required is for there to be a causal connection between the (pcp) and the disadvantage suffered by the group of that gender and /or by the individual of that gender and the employer must then try to objectively justify the (pcp) to override the disadvantage caused.
The Employment Appeal Tribunal (EAT) in the case of Dobson v North Cumbria Integrated Care NHS Foundation Trust June 2021 have given further clarity on the application of indirect discrimination in the context of working mothers, and although EAT acknowledged that many social norms and expectations can change over time and that now men bear a greater burden for child care responsibilities than previously but that still is not equal to what working mothers have to do thus emphasising that Employment Tribunals must have due regard that women bear the greater burden of childcare responsibilities than men which can limit their ability to work certain hours. Choudhury J at paragraph 46 of his judgment, termed this “the childcare disparity” and ruled that this is a matter that Employment Tribunals “must take into account if relevant”.
The facts of this case were that the employee worked fixed hours as community care worker due to childcare reasons as having to look after 3 children, 2 having disabilities. Following a review of working arrangements, the employer introduced a more flexible working arrangement for all their staff extending to working weekends, but this employee could not work to the new arrangements because of childcare responsibilities and was thus dismissed.
UNFAIR DISMISSAL
Claims for indirect sex discrimination and unfair dismissal made by the employee were dismissed by the Employment Tribunal (ET) and the employee appealed to the Employment Appeal Tribunal (EAT) and was successful as Mr Justice Choudhury, held that the (ET) had erred in limiting the pool for comparison to the specific community nursing team in which the employee worked. The (pcp) to work flexibly, including at weekends applied to all community nurses across the Trust therefore the appropriate pool for comparison was all community nurses ie that the (ET) had an obligation to identify a pool comprising all persons affected by that PCP.
This is a landmark victory for working mothers, but with more men looking to achieve flexibility or caring for their children as say single parents, employers should also be aware of the increased risk of direct sex discrimination claims where their request is not considered equally with that of a female colleague.
This is a complex area of employment law and procedure, and appropriate HR advice and guidance should be taken by employers on the matter as if the Trust in the above case had a less onerous (pcp) like say working certain hours over a 7-day week with rotation then it may not have disadvantaged working mothers with child care obligations but each case turns on its own facts as even if a working mother can comply with the (pcp) there may still be a disadvantage where eg to comply with the (pcp) she needs to arrange childcare by paying for it as a single parent.
The article is for general information purposes only and should you require any further assistance on the matter please do not hesitate to call our advice-line team on 01455 852028.
