What is a Section 278 Agreement?

A Section 278 Agreement is a legal agreement between a developer and a highway authority to carry out highway works.

Indirect Discrimination: What HR Professionals Can Learn From The Dobson Case

The Equality Act 2010 protects employees from discrimination at work. One type of discrimination is indirect discrimination. This happens when an employer applies a policy, rule or working practice (known as a provision, criterion or practice, or PCP) to everyone, but it puts people with a particular protected characteristic at a disadvantage.

In cases involving sex discrimination, tribunals recognise that women are more likely to have primary childcare responsibilities. As a result, requirements for flexible working, overtime or weekend working may affect women more than men.

This issue was considered in the case of Dobson v North Cumbria Integrated Care NHS Foundation Trust. Mrs Dobson worked as a nurse and usually worked on Wednesdays and Thursdays. The Trust introduced a requirement for all nurses to work occasional Saturdays. Mrs Dobson argued that this disadvantaged her because of her childcare responsibilities and amounted to indirect sex discrimination.

The Employment Appeal Tribunal agreed that the requirement placed women at a disadvantage as a group and also disadvantaged Mrs Dobson personally. However, her claim was unsuccessful because the Trust was able to show that the requirement was justified and necessary to meet a legitimate business need.

The case provides four useful lessons for employers:

Consider both the group and the individual. Tribunals will look at the impact of a policy on the affected group as well as on the individual employee bringing the claim.
You do not need extensive data. Employers are not expected to carry out detailed monitoring of every policy’s impact on protected groups before they can justify it.
Explore alternatives. While employees do not have to suggest alternatives, it can help if both sides engage in discussions about possible compromises.
Build in flexibility where possible. A policy is more likely to be justified if there is some flexibility in how it is applied and the employer has considered reasonable adjustments or exceptions.

For HR professionals, the key takeaway is that policies which may disadvantage a particular group are not automatically unlawful. The important question is whether the policy serves a genuine business need and whether the employer has acted reasonably in balancing that need against the impact on employees.

About Jon Dunkley

Jon Dunkley is a Partner at Wollens and heads up the firm’s Regulatory Department. Based at our North Devon office, Jon is a highly experienced solicitor with a broad commercial and regulatory practice, supporting businesses, professionals and senior employees across a wide range of legal issues.