The issue of whether an NHS employer's requirement for community nurses to work flexibly, including at weekends, was a proportionate means of achieving a legitimate aim when weighed against the disadvantage it presented to a female nurse with two disabled children was considered by the tribunal in Dobson v Cumbria Integrated Care NHS Foundation Trust.
Mrs Dobson had a long-standing arrangement to work two fixed days a week, which the Trust sought to change by asking her to work occasional weekends with notice. This happened as community nursing was transitioning to a more 24/7 service and increasing treatment of patients at home. Ms Dobson was unable to agree any other working days, as she had caring responsibilities for her two disabled children and claimed family members could not help.
At first instance the tribunal had found there was no evidence of group disadvantage to women who, because of childcare responsibilities, were less likely to be able to accommodate certain working patterns than men. The Employment Appeal Tribunal (EAT) held that the tribunal was wrong and should have taken judicial notice of the "childcare disparity". On remission the tribunal found that the provision, criterion or practice (PCP) of requiring all community nurses to work flexibly, including on weekends, was objectively justified as a proportionate means of achieving the Trust's legitimate aim of providing care in the community 24/7, balancing workload among the team and reducing the cost of using more senior nurses at the weekend (to cover Mrs Dobson). The Trust had already proposed that Mrs Dobson would not be required to comply fully with the PCP (requiring her to work only occasional weekends) and the tribunal found that, in practice, this was the only measure open to the Trust other than exempting her from the PCP entirely. The tribunal commented that the principle of allowing flexible working cannot be applied too strictly and an employer's needs as a whole must sometimes prevail. The tribunal concluded that Mrs Dobson's disadvantage was at the lower end of the scale (it was found that some family childcare was available) and specific statistical evidence underpinning the Trust's legitimate aim was not required given the compelling nature of the oral evidence heard.
Take note: Although Dobson was remitted again to the tribunal, it is clear from the earlier EAT decision that, in discrimination claims on changes to working hours, tribunals will have to apply an established assumption of the "childcare disparity" in order to recognise that women still have the primary responsibility for childcare. However, the tribunal in this instance found that the flexible working requirement was objectively justified by reference to the Trust's legitimate aims of providing care in the community 24/7 and balancing the workload among the team.
