Dismissal Of A Working Mother For Refusal To Work Occasional Weekends May Have Been Indirectly Discriminatory And Unfair

Published date28 June 2021
Subject MatterEmployment and HR, Discrimination, Disability & Sexual Harassment, Unfair/ Wrongful Dismissal
Law FirmBrahams Dutt Badrick French LLP
AuthorMs Amanda Steadman

In Dobson v North Cumbria Integrated Care NHS Foundation Trust the EAT ruled that Employment Tribunals must take judicial notice of the fact that women still bear the primary burden of childcare responsibilities and this hinders their ability to work certain hours. This approach may help working mothers show that onerous working patterns are indirectly discriminatory on the grounds of sex.

What does the law say?

In the employment context, indirect discrimination occurs where:

  • The employer applies a provision, criterion or practice (the PCP) to a worker who has a protected characteristic for the purposes of the Equality Act 2010 and applies the same PCP to workers who do not share that protected characteristic.
  • The PCP puts (or would put) people with whom the worker shares the protected characteristic at a particular disadvantage compared to those who do not share it (the group disadvantage).
  • The PCP puts (or would put) the worker to that particular disadvantage (the individual disadvantage).
  • The employer cannot show the PCP to be a proportionate means of achieving a legitimate aim (objective justification).

Many employment cases have recognised that women are more likely than men to bear the bulk of childcare responsibilities and that this may disadvantage them as a group.

What happened in this case?

Ms Dobson was employed as a community nurse by an NHS Foundation Trust, working in a team made up of nine women and one man. She had three children, two of whom are disabled. Her childcare responsibilities meant that she only worked on Wednesdays and Thursdays each week. In September 2016, the Trust asked its community nurses to work flexibly, including occasional weekends (but not more than once a month). Ms Dobson refused due to her childcare commitments and was dismissed in July 2017.

Ms Dobson claimed that that her dismissal was unfair and indirectly discriminatory on the grounds of sex (she also brought a claim for victimisation which is not discussed in this briefing). The Employment Tribunal dismissed the unfair dismissal claim holding that the Trust had explored reasonable alternatives with Ms Dobson, which she had rejected. Ultimately, the increasing demands on the Trust's service meant that it was reasonable for them to conclude that there was no other option but to dismiss.

In relation to the indirect sex discrimination claim, the Tribunal concluded that the claim failed because there was no evidence that the PCP (namely, the requirement for...

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