Is The Childcare Disparity Still A Consideration For Today's Employers?

• Published date: 12 August 2021
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment
• Law Firm: Shoosmiths
• Author: Ms Antonia Blackwell

A recent case reminds us of the continuing reality that women, because of their childcare responsibilities, are less likely to be able to accommodate certain working patterns than men and that failing to take this into account could be discriminatory.

The case of Dobson v North Cumbria Integrated Care NHS Foundation Trust involved a claim of indirect sex discrimination. Under the Equality Act 2010, indirect discrimination can occur where an employer applies a provision, criterion or practice (PCP) which puts those with a protected characteristic at a particular disadvantage when compared to others without that protected characteristic, and the individual bringing the claim has the protected characteristic and was also put to that disadvantage, unless the employer can show the PCP to be a proportionate means of achieving a legitimate aim. The Employment Appeal Tribunal (EAT) in this case considered both the pool for comparison and the evidence required for group disadvantage in the context of an indirect sex discrimination claim.

Facts of the case

The Claimant, Mrs Dobson, was employed by the Respondent as a community nurse in the Cockermouth Community Nursing Team from 2004. After the birth of her first child, who is disabled, Mrs Dobson made a flexible working request to work 15 hours per week over two fixed days, which the Respondent agreed to. Mrs Dobson went on to have two more children and her third child was subsequently diagnosed with autism.

In 2013 the Respondent held a working pattern review. Mrs Dobson was initially asked to work the occasional weekend but the parties agreed that because of her domestic circumstances her existing fixed hours would continue. In 2016 the Respondent issued a new rostering policy under which all flexible working arrangements across the Trust were to be reviewed. Mrs Dobson was again asked to work an occasional weekend and was told this would be no more than once a month. However, she explained that she could not work any alternative arrangements as she had no other childcare available. She rejected the proposal and raised a grievance.

Her grievance and appeal were rejected. The Respondent informed Mrs Dobson that it had no option but to issue a notice of dismissal and to re-engage Mrs Dobson on new terms requiring her to work on additional days. Mrs Dobson did not accept the new terms and on 26 April 2017 the Respondent gave notice to terminate her employment.

Employment Tribunal decision

Mrs Dobson brought, amongst...