Beware of assumption of “childcare disparity” in discrimination claims
In a timely case for employers who are considering their working practices post lockdown, the Employment Appeal Tribunal has recognised that women still have the primary responsibility for childcare and are less likely to be able to work certain hours. A “childcare disparity” should be assumed when assessing changes to working hours and the impact on women, to avoid discrimination claims. (Dobson v North Cumbria Integrated Care NHS Foundation Trust (EAT))
The Claimant was a community nurse working fixed days of the week. Her employer introduced a new flexible working plan which required nurses to work occasional weekends, the Claimant was unable to comply because of her childcare responsibilities which led to her dismissal. She brought claims for unfair dismissal and indirect sex discrimination. The Employment Tribunal dismissed her claims.
On the indirect sex discrimination claim, it held that there was no evidence that the provision, criterion or practice (PCP) of requiring community nurses to work flexibly including some weekends put women at a particular disadvantage compared to men. The Tribunal found that, if it was wrong and women were put at a disadvantage, the Trust would be able to justify the PCP on the basis that it was pursuing the legitimate aim. The Claimant appealed.
The EAT allowed the appeal noting that the Tribunal had failed to take judicial notice of the fact that more women than men tend to have childcare responsibilities making them less likely to be able to comply with flexible working requirements. Although it is not a statutory requirement, the childcare disparity is a matter which has been taken into account by the courts for many years and is still current.
The EAT’s judgment provides a comprehensive reminder of the law in the area of employers applying a PCP and what is the correct comparator in a group of employees, and is a recommended read in full for client’s facing such issues.
This case has highlighted the need for Tribunals to continue to take the childcare disparity into account. In this case the Claimant did not need to provide supporting evidence to persuade the Tribunal that “childcare” put her at a disadvantage. As “assumption” of the disparity between men and women in respect of childcare could be taken to exist.
This case is timely as post the summer break and with the ending of the furlough scheme, employers turn to consider what working practices it might adopt post lockdown. Employers should consider childcare disparity when devising or implementing new policies or arrangements for different working patterns. Employers will need to be flexible and look at employee’s needs on an individual basis in particular when it comes to the impact of childcare responsibilities on flexible working practices.