In Dobson v Cumbria Partnership NHS Foundation Trust, Ms Dobson had a longstanding arrangement to work two fixed days a week, which the trust sought to change by asking community nurses, including the claimant, to work flexibly, including weekends, the PCP being to provide 24/7 care to patients with more complex needs.
Dobson has three children, two of whom are disabled, making it difficult for her to work flexibly, particularly at weekends. If Dobson was unable to work weekends, other nurses would be required to provide cover and this resulted in more senior (and expensive) staff covering shifts on weekends, which had a knock-on effect on the management of the team during the week.
Having found that the PCP put women at a particular disadvantage because of childcare responsibilities, the tribunal had to consider whether the trust could establish that the requirement to work flexibly including weekends was a proportionate means of achieving a legitimate aim. This required the tribunal to balance the disadvantage caused to Dobson against the legitimate and reasonable needs of the trust.
The tribunal dismissed the claimant’s indirect discrimination claim and found that the trust’s PCP was proportionate and rationally connected to its legitimate aim. Requiring Dobson to work occasional weekends was the only measure open to the trust and the disadvantage to the claimant was at the lower end of the scale because some family childcare was available.
This serves as a reminder to employers that a clear business aim is needed before implementing new policies and the impact of those policies on employees needs to be assessed and balanced against that aim. There must also be consideration given to whether there are other ways to achieve the business aim that would not be discriminatory before deciding on a way forward.
In Donnelly v PQ, Mr Donnelly made a claim for direct sex discrimination on the basis that the respondent had extended his probation period because he was a man. The respondent was a physically disabled woman and had employed Donnolly as one of her carers. During the claimant’s probationary period, the respondent decided that she could not employ the claimant to provide the intimate care that she needed. She extended his probationary period but did not provide the real reason for doing so. Upon discovering the reason for the probation extension, the claimant resigned.
PQ sought to rely on the general occupational requirement (OR) defence set out in paragraph 1 to schedule 9 of the Equality Act 2010. This exception is available where, having regard to the nature or context of the work, holding a particular protected characteristic (or, in some cases, not holding it) is an OR. The application of the requirement must be a proportionate means of achieving a legitimate aim.
The employment tribunal held that PQ had a legitimate aim of privacy and dignity. However, her means of achieving that aim in extending Donnelly's probationary period were not proportionate as she could have preserved her privacy and dignity in less discriminatory ways, including overlapping his shifts with female carers, explaining concerns before any need to extend probation arose and creating opportunity to build a relationship of trust before such care was required.
The following legislation has now been passed, which links to sex discrimination because of the factual basis of many such claims.
The Employment Relations (Flexible Working) Act 2023 received Royal Assent on 20 July 2023 and section 1 of the Act and secondary legislation is expected to come into force in July 2024. The Act makes changes to the right to request flexible working as follows:
- Employees will no longer have to explain what effect their requested change may have on the employer and how any such effect might be dealt with.
- Employees will be entitled to make two requests (instead of one) in any 12-month period.
- Employers will not be able to refuse a request unless the employee has been consulted.
- Employers will have to make a decision in two months (reduced from three months), subject to agreeing a longer decision period.
The Act does not introduce a ‘day one’ right to request flexible working (in place of the current requirement for 26 weeks' continuous employment to qualify for the right). This change is expected to be introduced by way of secondary legislation.
The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 received Royal Assent on 24 May 2023 and came into force on 24 July 2023. No date has been announced for implementation, but regulations will be laid ‘in due course’.
The Act provides a power for regulations to be made to extend the right to be offered suitable alternative vacancies in a redundancy situation so that it will apply during pregnancy and for a period after pregnancy or maternity, adoption or shared parental leave (expected to be a period of six months after returning to work).
Sarah Edwards is a senior employment law solicitor at Howarths