‘Childcare disparity’ highlighted by Employment Appeal Tribunal

The Employment Appeal Tribunal (EAT), in Dobson v North Cumbria Integrated Care NHS Foundation Trust, recently looked at a case of indirect sex discrimination and what it termed the “childcare disparity”. This refers to the fact that women bear the greater burden of childcare than men and this can limit their ability to work certain hours.

The facts

Mrs Dobson was employed as a nurse working fixed days a week and had done this for a number of years. Her employer, the Trust, wanted to introduce more flexible working, requiring the nurses to work on occasion at weekends. Mrs Dobson was not able to comply with this because of her responsibilities for her three children, two of whom were disabled. She was dismissed by the Trust and she claimed unfair dismissal and indirect sex discrimination stating, “As a woman, I had a particular disadvantage compared to men on the basis that women are more likely to be child carers than men.”

The original employment tribunal had not upheld Mrs Dobson’s claims, stating that there had been no evidence shown that the provision, criteria or practice (PCP) – the need to work flexibly – put women at a particular disadvantage compared to men. Mrs Dobson appealed to the EAT.

The law

In claiming indirect sex discrimination, Mrs Dobson was relying on section 19 of the Equality Act 2010 which provides:

A person (A) discriminates against another (B) if A applies to B a provision, criteria or practice (PCP) which is discriminatory in relation to the relevant protected characteristic of B’s.

A PCP is discriminatory in relation to a relevant protected characteristic of B’s if:

(a) A applies, or would apply, it to persons with whom B does not share the characteristic;

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it;

(c) it puts, or would put, B at that disadvantage; and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

“The prohibition of indirect discrimination thus aims to achieve equality of results in the absence of such justification. It is dealing with hidden barriers which are not easy to anticipate or to spot.” Baroness Hale, Essop.

Outcome

The EAT found that Mrs Dobson was correct in arguing that, when making a comparison, it should not have just been the nurses in her team who were able to comply with the flexible hours. Since the review of hours applied to the Trust as a whole, the pool for comparison should have been all community nurses.

Further, the EAT said the tribunal had erred as it did not take “judicial notice” of the childcare disparity, i.e. that more women than men tend to have childcare responsibilities so are more likely to be unable to comply with flexible working requirements.

It considered a number of previous cases which had acknowledged this childcare disparity and it had been noted by courts at different levels for many years.

The fact that the EAT found that the tribunal should have taken judicial notice of the childcare disparity means it acknowledged that sometimes no evidence is required of matters which are considered social norms. As referred to in the judgement when looking at previous cases, “An industrial tribunal does not sit in blinkers. Its members are selected in order to have a degree of knowledge and expertise in the industrial field generally. The high preponderance of single mothers having care of a child is a matter of common knowledge”.

Employers do have the defence of objective justification and the Trust emphasised that Mrs Dobson’s difficulties were not insurmountable, given that it was going to give her as much notice as possible of the changes and her husband was available at weekends to help.

The EAT highlighted, however, that it does not need to be impossible for an employee to comply with the requirement before there is a “disadvantage”. The disadvantage could be that compliance would be difficult or that other childcare arrangements would have to be made.

The outcome was that the EAT upheld Mrs Dobson’s appeal and her case has been submitted to a fresh tribunal. It is interesting to note, but perhaps not surprising, that this childcare disparity still exists, although the EAT rightly highlighted that “the matter is not set in stone”.

As society changes, societal norms shift. However, despite the progress made on equality, the evidence seems to suggest that females pick up not just the majority of the childcare responsibilities but caring roles in general, sometimes being “sandwich carers” – caring for young children and elderly parents at the same time. Working families have hailed this case as a victory for women in the workplace but it should be remembered that each case will turn on its own facts.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.