A landmark ruling has recently been handed down by the President of the Employment Appeal Tribunal, in which Justice Choudhury, ruled that employment tribunal judgments must take childcare disparity into account, particularly in respect of indirect discrimination claims.
Background
The Claimant, Mrs Dobson, was employed by the Defendant, North Cumbria Integrated Care NHS Foundation Trust (“the NHS”) as a community nurse. Mrs Dobson was working fixed days per week, as she had childcare commitments to her three children, two of which were disabled.
The NHS then sought to introduce more flexible working, which included a requirement to work occasional weekends. Mrs Dobson was unable to comply with the new requirements due to her child care commitments and was subsequently dismissed as a result.
Employment Tribunal Claim
Mrs Dobson then brought a claim for unfair dismissal and indirect discrimination against the NHS for her dismissal. However, both of the claims were dismissed by the Employment Tribunal in the first instance and as such, Mrs Dobson appealed those judgements to the Employment Appeal Tribunal.
Employment Appeal Tribunal
Justice Choudhury allowed the appeal and ruled in Mrs Dobson’s favour, that the Employment Tribunal had erred in limiting the pool for comparison to the team in which Mrs Dobson had worked. In addition, it was found that the Employment Tribunal had erred in dismissing the indirect discrimination claim because of the lack of direct evidence of group disadvantage
Justice Choudhury went on to state that women continue to bear a greater burden of childcare responsibilities than men and this can limit their ability to work particular hours and this is known as the childcare disparity. Employment Tribunals must take into account the childcare disparity in cases where it is relevant. The fact that the Employment Tribunal did not take the childcare disparity into account in this case, meant that the findings on justification and unfair dismissal could not stand and needed to be revisited.
As such, the case has now been handed back down to the Employment Tribunal for reconsideration.
Points for Employers to Consider
An important consideration for employers to take away from this ruling, is that in any circumstances in which they are looking to vary their employees working patterns, consideration needs to be given to individual personal circumstances, particularly when it comes to childcare.
The Employment Tribunal have not yet made a new ruling on the unfair dismissal and indirect discrimination claims raised by Mrs Dobson, following Justice Choudhury’s comments.
However, it is clear that any move to dismiss an employee on the basis of their inability to work flexible or different hours, especially due to childcare commitments, will leave the employer at risk of indirect discrimination claims and potential liability for damages. Prior to taking any such steps, it is important to take legal advice to mitigate the risk of tribunal claims.
For more information on the managing discrimination issues within the workplace, please contact a member of the Employment Team.
