An employment tribunal failed to take into account the “childcare disparity” faced by women when it said a nurse was not unfairly dismissed because she was unable to work weekends, the Employment Appeal Tribunal (EAT) has ruled.
The decision is being hailed as a landmark ruling that will help protect the rights of working mothers by recognising women’s disproportionate childcare burden as a fact for future discrimination cases.
Working Families, which intervened in the case, said the judgment could mean individual clamants will no longer have to present evidence that women shoulder more of a caring burden than men, bringing “vital clarity” to other claims of indirect sex discrimination where changes to working hours push women out of their jobs by making childcare impossible.
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“As the economic impact of Covid takes hold and the furlough scheme comes to an end, this judgment is a welcome protection that makes it clear that anything that impacts on childcare impacts disproportionately on women,” said Jane van Zyl, the charity’s CEO.
The ruling comes as a victory for Gemma Dobson, a community nurse who is arguing she was unfairly dismissed and faced indirect sex discrimination from North Cumbria Integrated Care NHS Foundation Trust after it introduced a new flexible working policy that required her to work some weekends.
Dobson, who had worked fixed days because of her childcare responsibilities for three children, including two with disabilities, was dismissed because she was unable to comply with the new requirements.
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An initial employment tribunal had ruled that Dobson’s dismissal was not unfair, finding that “being a female with caring responsibilities” was not a protected under the Equality Act because, while sex is protected characteristic, Dobson’s “sex and her caring responsibilities cannot be conflated in this way”.
The initial tribunal also ruled that, as all the other women in Dobson’s team were able to work with the new flexible working requirement – including those with childcare responsibilities – the requirement did not create a group disadvantage that Dobson could have based her claim on.
However, the EAT said this tribunal had erred when it limited the comparison to just the team of nurses Dobson was working with, finding that because the new flexible working policy was rolled out across the trust, the pool of comparison should have included all of the trust’s community nurses.
The EAT also said the tribunal was wrong to rule that the new flexible working policy did not create a group disadvantage because it did not recognise the childcare burden disproportionately faced by women.
“The tribunal erred in not taking judicial notice of the fact that women, because of their childcare responsibilities, were less likely to be able to accommodate certain working patterns than men,” Mr Justice Choudhury, the presiding EAT judge, wrote.
He added that because the nature of the flexible working requirement meant nurses had to work on days required by the trust, and did not mean nurses had the flexibility to choose when they worked, it was an arrangement “that was inherently more likely to produce a detrimental effect, which disproportionately affected women”.
The EAT did not pass judgement on whether Dobson was unfairly dismissed or indirectly discriminated against, and the case will now be reheard at an employment tribunal.
In a statement, Dobson said: “I am totally delighted with the outcome of the appeal after my utter disbelief at the outcome of the original tribunal.
“I truly hope that in the future other working mothers won’t be discriminated against for having caring responsibilities; especially those that care for disabled children.”
A spokesperson for North Cumbria Integrated Care NHS Foundation Trust said: “The trust does not believe that [it] is appropriate to comment further at this stage given that the matter will return to the original employment tribunal.”