A working mother whose employer tried to move her onto frequently changing shift patterns has won her case for unfair dismissal and indirect sex discrimination at the Employment Appeal Tribunal.
The outcome of the case is important because it means that future tribunals will need to take the disparity in childcare loads between men and women into account.
The original tribunal case was brought by Mrs Dobson, who was employed as a community nurse by North Cumbria Integrated Care NHS Foundation Trust. She has three children, two of whom are disabled.
Indirect discrimination
Indirect discrimination: Wrong comparison group used for childcare policy
For years she had worked set days to accommodate her caring needs. Her employer sought to impose a change in her contracted hours requiring her to work on a flexible schedule, which meant changing her normal work pattern and including weekend working if her employer needed it.
Because of her caring responsibilities, she could not accommodate the changing hours and was dismissed.
Upon appeal, however, the court revisited the “provision, criterion or practice” in the original tribunal, which dismissed Dobson’s claim for indirect discrimination due to lack of direct evidence of group disadvantage.
The judge said that the tribunal “had erred in limiting the pool for comparison to the team in which the claimant worked”, rather than taking into account that women are statistically less likely to accommodate changing shift patterns due to childcare caring responsibilities.
The judgment added: “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.
“These conclusions meant that, in the circumstances of this case, the findings on justification and unfair dismissal could not stand and would have to be revisited.”
Charity Working Families intervened in the appeal, which sets a precedent for future discrimination cases that the burden of caring for children falls more heavily on women.
The charity said it provided “vital clarity for the many cases of indirect sex discrimination where employers attempt to force changes that make childcare impossible and have the effect of forcing women out of their jobs”.
If the appeal had been rejected, this would mean individual women would have had to present evidence to show women shoulder more of the caring burden than men, it added, making the bringing of discrimination claims even more difficult than it already is.
CEO Jane van Zyl, who gave evidence to the tribunal, said she was “delighted” with the result.
“This has clarified and reinforced the existing protection for working mothers from discrimination: something that many women who come to us for help rely on in their cases. We know that women have shouldered the major burden of caring responsibilities through the pandemic.
“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.
“Of course we want to live in a world where caring responsibilities are shared equally, but the hard truth is that we are nowhere near that yet. To lose this case would have represented a huge step backwards for women’s workplace rights, and we are really pleased with the judgment.”
Barristers at Matrix Chambers acted for Working Families on a pro bono basis.
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Claire Darwin of Matrix Chambers added that “the judgment of the Employment Appeal Tribunal provides welcome clarity for employment tribunals and litigants about what evidence women need to adduce in indirect sex discrimination claims that challenge working patterns which conflict with childcare responsibilities”.
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