In Dobson v North Cumbria Integrated Care NHS Foundation Trust (the “Trust”), the Employment Tribunal considered whether the Trust’s policy of requiring all community nurses to be available to work flexibly, including at weekends, amounted to indirect sex discrimination.
Background
The Claimant was employed as a Band 5 community nurse by an NHS Trust from 2004 until her dismissal in July 2017. From 2008, she worked a fixed pattern of 15 hours over Wednesdays and Thursdays only to align with her childcare requirements. In 2016, the Trust introduced a Flexible Working Policy which required all community nurses to be able to work flexibly including at weekends. The Claimant refused any change to her working pattern when asked to work occasional weekends as she maintained that weekend working would not allow her to organise suitable childcare for her family. This led to her dismissal.
She then brought claims against the Trust of:
· Indirect sex discrimination
· Unfair dismissal
Both claims were dismissed by the Tribunal and in particular, the discrimination claim was dismissed due to no evidence being provided that the flexible working policy specifically put women at a disadvantage.
The EAT overturned the dismissal of the discrimination claim as it was held that the Tribunal should have taken judicial notice of the “childcare disparity” between women and men. The matter was remitted to consider whether the Trust could show the PCP requiring flexible working including weekends was justified. The unfair dismissal claim was also remitted as it was likely to stand or fall with the discrimination claim.
Decision on remission
The Tribunal found that the dismissal was fair and the PCP was justified. It was designed to achieve the Trust’s legitimate aims of:
· Providing care in the community 24/7
· Balancing workload among the team
· Reducing the cost of using senior nurses at the weekend.
The Tribunal concluded that the Claimant’s fixed working pattern caused the Trust to suffer operational difficulties as more senior staff were required to provide cover at greater cost. It was critical of rigid applications of work-life balance and flexible working principles and commented that employer’s needs as a whole must sometimes prevail.
The Tribunal noted that the Claimant’s disadvantage was at the lower end of the scale as some family childcare was available. It advanced that the disadvantage of relying on family members for childcare did not outweigh the reasonable needs of the Trust to deliver its care services in a manner that accounts for the requirements of both patients and other community nurses. This was deemed to support the view that the PCP was a proportionate measure.
Furthermore, the Tribunal held that it was relevant that the Claimant had not provided any other measure to allow the Trust to achieve its legitimate aims. She had indicated that the Trust could exclude her from the flexible rota entirely but this would not aid the Trust in any way.
The Claimant appealed yet again to the EAT and argued that the Tribunal had failed to consider the disadvantage to the wider group affected of women bearing greater childcare responsibilities. She believed too much focus had been placed on her responses during the consultation process prior to her termination.
Appeal decision
The EAT dismissed the appeal and upheld the Employment Tribunal’s finding that the Trust’s policy of requiring all community nurses to be available to work flexibly including at weekends was neither discriminatory nor unfair. They held that the PCP was justified under section 19(2)(d) of the Equality Act 2010.
It found that the Tribunal had not failed to consider the disadvantage to the wider affected group and that they had considered available evidence which allowed them to reasonably infer that the impact of the policy on other community nurses had not caused substantial disadvantage. It had not led any other nurse to experience difficulties to the point of leaving employment. Appropriate analysis was conducted and requiring a further forensic consideration of the Trust’s employees’ circumstances would impose an unreasonable burden on the Trust.
Moreover, the EAT asserted that the Tribunal were justified in considering the Claimant’s responses throughout the consultation process prior to her termination as they assisted the Tribunal with objectively assessing whether the PCP was reasonable.
Why is the case important?
This case is significant as it evidences that, provided the Tribunal has considered the impact of the PCP on the Claimant and the wider affected group, the weight given to each factor in the claim is for the Tribunal to determine and is unlikely to be departed from upon appeal. The EAT also confirmed that whilst the onus is on the employer to justify a PCP, they are not required to conduct a forensic analysis of every employee in the affected group’s individual circumstances to do so.
It is noted that the Tribunal is veering towards support of PCPs where only some lower end disadvantage is to be found and this can be justified where necessary to meet operational needs. The EAT is holding steadfast to the Tribunal’s decision making regarding lower end disadvantage and is unlikely to be dissuaded from this approach upon appeal.
