Indirect sex discrimination – childcare responsibility

Posted on November 7th, 2023

The case of Mrs Dobson v Cumbria Partnership NHS Foundation Trust found that the trust’s policy of requiring all community nurses to work flexibly, including at weekends, was not indirect sex discrimination.

Flexible working

Mrs Dobson was employed as a community nurse, working fixed days per week following a successful flexible working request. In 2016, the trust introduced a new rostering policy, requiring community nurses to work flexibly, including working at weekends. Mrs Dobson had two disabled children and was unable to comply with the request due to their care needs.

Dismissal and re-engagement

She was subsequently dismissed by the trust in 2017 and they offered to re-engage her on new terms which required her to work on additional days. Mrs Dobson declined the new terms and subsequently brought claims of unfair dismissal and indirect discrimination within the employment tribunal (ET). The ET dismissed her claims and she appealed.

Pool for comparison

The employment appeal tribunal (EAT) held that the ET had erred in limiting the pool for comparison to only those in Mrs Dobson’s team. The appropriate pool was all community nurses.

Group disadvantage

The ET had also erred in finding that there was no evidence of group disadvantage and not taking judicial notice of the fact that women, because of childcare responsibilities, were less likely to accommodate certain working patterns than men. The claim was therefore remitted back to the original ET for reconsideration.

Proportionate means of achieving a legitimate aim

Upon remission, the ET upheld its original decision that Mrs Dobson had not been unfairly dismissed or suffered indirect discrimination. They found the requirement to work flexibly and at weekends was a proportionate means of achieving a legitimate aim of providing care in the community 24/7.

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