Is Flexible Working Sex Discrimination?
In a recent case, the Employment Appeal Tribunal (EAT) held that employment tribunals must have regard to “the childcare disparity” when considering sex discrimination claims.
The case concerned Dobson who was a community nurse who worked on fixed weekdays. The Trust introduced more flexible working, including a requirement that community nurses work on weekends. Dobson was unable to work on weekends, due to her caring responsibilities for her children, two of whom are disabled. Because of this, Dobson was dismissed.
Dobson brought claims for unfair dismissal and indirect sex discrimination. Indirect sex discrimination arises where an employer applies a provision, criterion, or practice to a female employee that it applies, or would apply, to male employees, which puts women at a disadvantage compared to men (including the particular female employee), and the employer cannot justify the provision, criterion, or practice as a proportionate means of achieving a legitimate aim.
The Employment Tribunal dismissed Dobson’s claims. They found that the flexible working practice introduced by the Trust did not put women at a particular disadvantage when compared to men. All of Dobson’s female colleagues were able to comply with the new requirements. As such, the indirect sex discrimination claim failed for a lack of group disadvantage. Dobson appealed to the EAT.
The EAT found that the ET should not have confined the pool for assessing whether there was group disadvantage to Dobson’s colleagues only. As the flexible working practice was applied by the Trust to all community nurses, the assessment as to whether the practice disadvantage women in comparison to men should have taken account of the impact of the practice on all community nurses.
Furthermore, the EAT held that the ET should have taken judicial notice of “the childcare disparity”, being that women are more likely than men to have childcare responsibilities and are therefore less likely to be able to comply with flexible working practices. The EAT did say that taking judicial notice of the childcare disparity does not mean that group disadvantage would automatically be found; although, on the facts, where the nurses had no choice as to their working hours, a finding of group disadvantage was likely. The EAT did also make the point that the childcare disparity was not a timeless concept. If men take on childcare responsibilities to the same extent as women in the future, then the childcare disparity would no longer apply.
The EAT remitted Dobson’s claims to be reheard. Of course, this does not mean that Dobson will succeed in the ET. Even if group disadvantage is found by virtue of the childcare disparity, the ET remarked in its initial judgment that the flexible working practice would likely be justifiable as a proportionate step to achieve a legitimate aim. Regardless, the EAT’s findings are an important reminder of the relevance of the childcare disparity. Employers looking to implement changes to working hours or other flexible working practices should take note.
