In the recent case of Dobson v Cumbria Partnership NHS Foundation Trust the employment tribunal considered whether an NHS employer’s requirement for community nurses to work flexibly, including at weekends, was a proportionate means of achieving a legitimate aim.
Indirect discrimination
By way of a quick reminder, an employer will be found to have indirectly discriminated against an employee when it applies a “provision, criterion or practice” (PCP) (such as a policy) to all of its staff in the same way, but, because that employee has a particular protected characteristic (such as being female or belonging to a particular religious group) the policy places him or her at a disadvantage when compared to those who do not share that characteristic.
Even if an employer has a PCP that is indirectly discriminatory in the way described above, this will be justified (and therefore lawful) if the employer can show that the application of the policy amounted to a “proportionate means of achieving a legitimate aim”.
Facts of this case
Mrs Dobson worked for the North Cumbria Integrated Care NHS Foundation Trust (the Trust) as a nurse. Mrs Dobson has three children, two of whom are disabled. In order to facilitate childcare, she worked 15 hours per week spread over a Wednesday and Thursday.
A new rostering policy was introduced in 2016, under which Mrs Dobson was notified that she may be required to work on other days, including Saturdays.
Mrs Dobson refused to accept this change to her hours, claiming that she was unable to arrange childcare on any other days. The Trust insisted that the change must be implemented as, in order to cover Mrs Dobson, other staff had to work more at the weekends, which also meant senior nurses were not available to deal with management issues during the week.
Mrs Dobson refused to accept the new rostering arrangement and the Trust dismissed her. Mrs Dobson brought claims for unfair dismissal and indirect sex discrimination.
Employment Tribunal and Employment Appeal Tribunal decisions
In her indirect discrimination claim, Mrs Dobson alleged that the Trust’s rostering policy placed her at a disadvantage as a woman with childcare responsibilities, as compared to men who, she argued, tend to share less of the childcare burden across society.
The Tribunal rejected this argument, finding that Mrs Dobson had not adduced evidence which demonstrated that women, as a group were (or would be), disadvantaged by the Trust’s requirements.
Mrs Dobson appealed to the Employment Appeal Tribunal (EAT) which upheld her appeal. In reaching this decision, the EAT rejected the Tribunal’s reasoning on the point referred to above, noting that it was widely accepted by the courts that women bear a greater burden of childcare responsibilities than men, and that this can negatively impact their ability to work certain hours. The case was sent back to the Employment Tribunal to be heard again.
The recent Employment Tribunal decision
This time around, the Tribunal accepted that the Trust’s policy had an indirectly discriminatory effect on Mrs Dobson. However, it again rejected her claim, finding that the Trust’s requirement that Mrs Dobson work the hours in question was justified as a proportionate means of achieving a legitimate aim. In deciding that the Trust’s legitimate needs outweighed the disadvantage caused to Mrs Dobson, the Tribunal cited a number of reasons, including:
- Mrs Dobson had adopted an intransigent position – refusing any change at all to her working hours; whilst the Trust had sought to reach a compromise by reducing the requirements on Mrs Dobson.
- Requiring Ms Dobson to work occasional weekends was the only reasonable measure open to the Trust.
- It was apparent that some family childcare was available on the days that she would have been required to work, meaning her disadvantage was at the “lower end of the scale”.
- The principle of allowing flexible working cannot be applied too strictly and an employer’s needs as a whole must sometimes prevail.
Lessons for employers
As the EAT stated in this case, courts and Tribunals will generally assume that a requirement to work particular hours will put women at a greater disadvantage than men (owing to the disparity in childcare responsibilities across society). Accordingly, employers should always be alive to the risk that such requirements may have an indirectly discriminatory impact on mothers in their workforce.
In addition, whilst the Employment Tribunal’s recent decision serves as a reminder that an indirectly discriminatory policy can sometimes be justified, this will only be so in cases where employers can demonstrate that the application of the particular working pattern amounted to a proportionate means of achieving a legitimate aim. Accordingly, employers will need to carefully identify the legitimate aims that it is pursuing by such a policy and balance those against the disadvantage caused to the employee in question, before deciding on the appropriate course of action.