Background
The case of Dobson v North Cumbria Integrated Care NHS Foundation Trust is a long-running one that began when the Trust introduced a Flexible Working Policy ("the Policy"). The Policy required all community nurses to be available to work flexibly, including at weekends. The claimant had been employed as a community nurse since 2004. The Policy was introduced with the aims of: reducing the cost of having senior nurses work weekends; ensuring senior nurses were available during the week; improving patient care; and allowing for more complex community care.
At the time of the introduction of the Policy, the claimant had three children, two of whom were disabled. She worked a fixed pattern of fifteen hours over two weekdays, with childcare provided by her mother-in-law. When she was asked to work flexibly, including occasional weekends for which she would be given several weeks' notice, she advised she could not. She maintained this position, and her employment was eventually terminated. She was the only community nurse who was unable to agree to the flexible working arrangements.
At first instance, both an unfair dismissal claim and an indirect sex discrimination claim were unsuccessful. However, the claimant's appeal to the Employment Appeal Tribunal ("EAT") was successful. In part, that was because the EAT found that the tribunal had failed to take judicial notice of the "childcare disparity" when establishing whether there was a "group disadvantage". Evidence of group disadvantage, alongside disadvantage to a claimant, is required for an indirect discrimination claim to succeed. The case was remitted back to the tribunal to consider whether the flexible working requirement was justifiable.
The claimant was not successful, with the tribunal finding that the provision, criterion or practice ("PCP") that had been applied to the claimant - the requirement to work flexibly including weekends - was justified. The requirement was a proportionate means of achieving the Policy's legitimate aims (reducing costs, balancing team workload and providing 24/7 community care). When considering proportionality, the tribunal found that the claimant's disadvantage was at the lower end of the scale, as there was some family childcare available. As such, occasional weekend work was "in fact manageable", albeit with some difficulty. It was also significant that the claimant had failed to identify any alternative working arrangements during the consultation process that preceded her dismissal. The Tribunal described her position as "unquestionably intransigent".
EAT judgment
The claimant appealed again to the EAT, however on this occasion she was unsuccessful. The judgment provides helpful guidance for tribunals on how to approach justification and emphasises the importance of balancing the extent of the claimant's disadvantage with the needs of the employer. This does not require an employer to undertake a forensic examination of every possible disadvantage or inconvenience experienced by multiple employees. Imposing such an obligation would be an unreasonable burden on an employer. In this case, the tribunal noted that no other community nurse had left employment in consequence of the application of the Policy. While some may have been disadvantaged to an extent when complying, the tribunal was entitled to conclude that any such disadvantage was at the lower end of the scale. That disadvantage did not outweigh the employer's need to meet its legitimate aims.
The EAT also concluded that, although there was no legal burden on the claimant to identify less discriminatory ways for the Trust to meet its legitimate aims, it was "striking" that she had offered none.
Comment
Employers should always be cautious when introducing a requirement that may have an indirectly discriminatory impact. However, this case will give employers comfort that working arrangements can be justified - even when a protected group may be disadvantaged. It was significant in this case that the employer had attempted to reach a compromise with the employee during consultation meetings prior to the termination of her employment. This was in contrast to the employee's unwillingness to explore alternatives.
