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Case law has identified that working mothers are more likely to be limited in their working hours due to childcare commitments. This childcare disparity can lead to indirect sex discrimination if a female employee suffers a disadvantage.
In the case of Dobson v North Cumbria Integrated Care NHS Foundation Trust, Mrs Dobson was a community nurse whose employer, the Trust, sought to introduce what it described as ‘flexible working’, including working at weekends. Due to childcare commitments, Mrs Dobson was unable to work when required and was subsequently dismissed. Mrs Dobson claimed unfair dismissal and indirect sex discrimination.
The Equality Act 2010 states that a person indirectly discriminates against another if they apply a provision, criterion or practice which puts an individual or group of individuals at a disadvantage in relation to a relevant protected characteristic. Mrs Dobson claimed that the provision of weekend working put female employees at a disadvantage when compared to male colleagues due to the childcare disparity.
In Dobson, the initial Employment Tribunal found that whilst Mrs Dobson did suffer a disadvantage, the rest of Mrs Dobson’s mostly female team did not, and there was no indirect sex discrimination. It was also held that the Trust was proportionate in pursuing the legitimate aim of providing a safe and efficient service by requiring weekend work, which is a potential defence to indirect discrimination.
The case went to the Employment Appeal Tribunal (EAT), which held that it was well known that women generally have greater childcare commitments than men, which can affect their working patterns, and the ET should have acknowledged this.
The EAT also held it was wrong to limit the group for comparison to the Mrs Dobson’s small team, and the correct group for comparison was all community nurses at the employer who were required to work on weekends. The matter was sent back to the initial Tribunal to decide whether the justification for the provision would remain when scaled up to the larger group.
The EAT noted that societal norms can change over time and acknowledged that men now bear a greater proportion of childcare responsibilities. However, this is still far from equal, and there is still a disparity, which could lead to indirectly discriminatory practices.
The EAT noted that flexibility in Mrs Dobson’s claim was one-sided as she was expected to work when required by the Trust and had no actual flexibility to choose her working days or hours.
In contrast, the John Lewis Partnership announced its own Flexible First Commitment alongside a number of other family-friendly measures, which appears to be led by the needs of the employee rather than the demands of the employer.
On 10th June 2021, JLP stated, “All job vacancies will be advertised with a flexible working option, unless there is an operational reason why this is not possible. A ‘blended’ working approach for office-based Partners also begins this month, providing Partners with choice and flexibility with where and how they work”.
It is notable, however, that John Lewis have still caveated that there may be an operational need for ‘inflexible’ working. In terms of indirect sex discrimination, the EAT stated in Mrs Dobson’s case that much will depend on the provision in question and whether the employer’s requirements are a proportionate means to achieving a legitimate aim.