Wed 14 Jul 2021

Tribunal should take account of "childcare disparity" in sex discrimination claim

More than 20 years after it was identified, the childcare disparity is still a feature of working life.

Indirect discrimination claims, where a requirement (a "PCP") is applied to everyone but it results in putting individuals with a particular protected characteristic at a disadvantage, can be complicated.  Not only does a claimant with the protected characteristic need to show they have been put at a disadvantage, they also need to show that a group with whom they share that protected characteristic are also disadvantaged.  Correctly identifying the pool for comparison can be critical to the success or failure of a claim.  While often it is necessary for a claimant to present evidence demonstrating this group disadvantage, in some cases the facts being relied upon may be accepted as common knowledge. 

In Dobson v North Cumbria Integrated Care NHS Foundation Trust the Claimant was a community nurse.  After the birth of her first child she requested a flexible working pattern that resulted in her working two days a week while her mother in law looked after her child.  Some 8 years later the NHS Trust reviewed their flexible working arrangements.  It concluded that the claimant would have to occasionally work weekends.  The claimant refused, citing childcare responsibilities, and was dismissed.  She brought a claim for unfair dismissal and indirect sex discrimination against the NHS Trust.  Her claim was based on the argument that women disproportionately bear the burden of childcare responsibilities and consequently a requirement to work weekends put them, and her personally, at a particular disadvantage when compared to men.

The employment tribunal dismissed the claim.  When considering whether there was a group disadvantage the tribunal considered the application of the weekend working requirement to the claimant's team only.  The team was made up of 8 women and 1 man and the tribunal concluded that everyone in the team could comply with the requirement.  As such there was no particular disadvantage to women and the claim failed.  The NHS Trust had put forward an argument that, even if the requirement was indirectly discriminatory it was justified as a legitimate aim - achieving flexible working for all - was being pursued and it was proportionate to apply this to all members of the claimant's team.

On appeal the EAT found that the tribunal had been wrong to limit the pool for comparison to the claimant's team.  The correct approach was to consider all of the NHS Trust's community nurses that were required to work flexibly, not just the team.  The tribunal should also have taken judicial notice of the fact that as women bear the brunt of childcare responsibilities - the childcare disparity - they were less likely to be able to accommodate certain working patterns.  There was a wealth of case law stretching back to the Court of Appeal in 1999 that tribunals are entitled to take into account their own knowledge and experience that the burden of childcare falls upon many more women than men when deciding a case of this sort.  In light of the EAT's conclusions both the unfair dismissal and indirect discrimination claims would therefore need to be revisited and the case was remitted back to the employment tribunal.

Although tribunals need to take judicial notice of the childcare disparity, its existence does not mean female claimants will always be able to show group disadvantage.  Not all forms of flexible working will put women at a particular disadvantage compared to men.  Even where group disadvantage does exist an employer may still be able to justify an indirectly discriminatory provision, criterion or practice.  It is also to be hoped that there will come a time when the childcare disparity no longer exists, when men and women share childcare responsibilities more equally.  Closing the gender pay gap and the intention to make flexible working the default position for all roles may help facilitate this to happen in the future, as will a move by society, more generally, away from outdated gender stereotyped roles within the home.  In the meantime employers need to remain conscious of how working requirements may disproportionately impact on working mothers.

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