In the recent case of Dobson v Cumbria Partnership NHS Foundation Trust, the respondent changed its work schedules, requiring the claimant, a community nurse and mother of three (with two disabled children), to work different days and weekends. The claimant couldn’t follow this new schedule and claimed indirect sex discrimination – arguing that the flexibility required within the new schedule placed her and other women at a disadvantage when compared with men, as more women than men have caring responsibilities.
The first time the employment tribunal looked at her case, they didn’t agree that the new work schedule was indirectly discriminatory against women- they said that the claimant had not shown that women as a group were disadvantaged by the policy. However, the Employment Appeal Tribunal disagreed, pointing out that the tribunal should have acknowledged that women, often being the primary caregivers, might find it harder to adapt to certain work schedules than men. The tribunal were still able to take judicial notice of the ‘childcare disparity’ (that more women than men have caring responsibilities) without the claimant needing to produce evidence of this.
The case went back to the tribunal, who then agreed the new work schedule was harder for the claimant and other women. Still, it decided that the change in schedule was justified on the facts because it was necessary for providing flexible services. So, the claimant’s claim did not succeed.
This case teaches us two important things:
- Tribunals can recognise that policies requiring work during evenings or weekends can be tougher for women because of caregiving duties without a claimant having to bring evidence to support the position.
- Employers are allowed to have flexible work schedules – they will not always be found to be unlawful discrimination, but they must have a strong reason for it and should consider other options that might achieve the same goal without being discriminatory.
Find out how we can help. Our partner, Jon Dunkley, heads the Wollens specialist Employment Department. Contact him today for an informal chat, without obligation on 01271 342268 or via email at [email protected].
