Flexible working and disparities in childcare

In Dobson v North Cumbria Integrated Care NHS Foundation Trust, an employment appeal tribunal (EAT) had to consider whether women, because of their childcare responsibilities, were less likely to be able to work particular patterns than men, and whether any subsequent dismissal would, therefore, be automatically unfair.

The claimant, Ms Dobson, was employed as a community nurse for the trust and worked fixed days per week. In 2016, the trust sought to introduce more flexible working, which included the requirement that community nurses needed to work some weekends.

Ms Dobson made it clear that she was unable to work weekends, due to her childcare commitments, including the fact that two of her three children are disabled. Ms Dobson was dismissed on the grounds that she refused to work the hours she was asked to work.

Ms Dobson lodged claims of unfair dismissal and indirect sex discrimination with the employment tribunal (ET). Both claims were dismissed.

Ms Dobson appealed. The EAT held that the ET had erred in limiting the pool for comparison to the team in which Ms Dobson worked and by not taking judicial notice of the fact that women, because of their childcare responsibilities, were less likely to be able to accommodate certain working patterns than men.

EAT noted two points:

• Women bear the greater burden of childcare responsibilities than men and this can limit their ability to work certain hours. This is called ‘the childcare disparity’.
• While the childcare disparity is not directed by statute to be taken into account, it is one that has been noticed by courts at all levels for many years. Therefore, it is a matter which a tribunal must take into account, if relevant.

Summary

Employers need to consider childcare disparity when making decisions about working hours.

However, childcare disparity does not necessarily mean that any requirement to work flexibly will put women at a disadvantage compared with men. Flexible working can mean different things in different contexts. Some types of flexible working, for instance the ability to work any seven-hour period between the hours of 8am and 6pm, could be considered beneficial by some with childcare responsibilities. Also, an employer should give advance notice of possible changes to a working pattern, which would reduce the scope for disagreement later.