Judicial notice should have been taken of "childcare disparity"


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The Employment Appeal Tribunal (EAT) has held in Dobson v North Cumbria Integrated Care NHS Foundation Trust that an employment tribunal erred in failing to take judicial notice of the fact that women are less likely than men to be able to accommodate flexible working patterns because of childcare responsibilities.

Judicial notice has been taken without further inquiry in the past of the fact that women bear the greater burden of childcare than men and that this can limit their ability to work certain hours, and should have been taken in the present case.

The claimant was employed as a community nurse working fixed days.  Following a review in 2016, the Trust introduced a requirement that community nurses work flexibly, including working at weekends.  The claimant was unable to comply due to the caring responsibilities she had for her three children (two of whom are disabled).  She was dismissed and claimed unfair dismissal and indirect sex discrimination.

At first instance the tribunal dismissed all the claimant's claims.  It accepted that the Trust had applied a provision, criterion or practice (PCP) (requiring its community nurses to work flexibly, including at weekends), and that this applied to men and women in the claimant's team.  It then observed that it had been shown no evidence that the PCP put women at a particular disadvantage compared to men, and that, on the contrary, all of the claimant's female colleagues were able to meet the requirement, as was the only man in the team.

The EAT remitted the claims to be reheard. It held that the tribunal had erred in confining the pool for comparison, for the purpose of testing group disadvantage, to the nurses in the claimant's team.  The Trust had applied the PCP to all community nurses and so, logically, the pool for comparison had to include all of the community nurses who were required to work flexibly.  It also held that the tribunal had erred in failing to take judicial notice of the fact that more women than men tend to have childcare responsibilities and so are more likely to be unable to comply with flexible working requirements.  While things might have progressed, in that men do now bear a greater proportion of child caring responsibilities than they did, the position is still far from equal. The EAT held that, although in the present case the tribunal was not specifically asked to take judicial notice of the childcare disparity, it should have done so.

Take note: The EAT has reaffirmed that tribunals should consider the "childcare disparity" when considering indirect sex discrimination claims arising out of working arrangements.  However, flexible working arrangements will not always put women at a disadvantage compared to men as they can be favourable to those with childcare responsibilities.

Please join our Trowers Tuesday on 13 July, Driving inclusivity after the pandemic, when we will be discussing the importance of inclusivity when it comes to configuring new working arrangements.

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