The Employment Appeal Tribunal (EAT) has confirmed that women still bear the greater burden of childcare and that this can limit their ability to work certain hours. This “childcare disparity” is well established and must be taken into account by tribunals without requiring evidence to support it. Also, a woman need only establish that a requirement to work flexibly puts her at a disadvantage, even if compliance is possible but with real difficulty, or with additional arrangements having to be made, or by shifting the childcare burden on to another, there may still be indirect sex discrimination.
Mrs Dobson worked as a community nurse for an NHS Foundation Trust. She has three young children, two of whom are disabled. Due to her childcare responsibilities, Mrs Dobson had, for a number of years, worked only on Wednesdays and Thursdays. Mrs Dobson’s mother-in-law arranged her working days to enable her to look after her grandchildren on the days when Mrs Dobson worked. Following an internal review of working arrangements, Mrs Dobson’s employer introduced a requirement for her working days to vary, including for her to work weekends from time to time. Mrs Dobson made it clear that she could not accommodate these new terms of her employment. Consequently, her employer issued her with notice of dismissal. She claimed unfair dismissal, victimisation and indirect sex discrimination.
The Employment Tribunal dismissed her claims. Mrs Dobson appealed to the EAT, which upheld her appeal and has remitted her claims back to the tribunal.
In assessing whether the requirement to work flexibly subjected women to a particular disadvantage when compared with men, the tribunal should have analysed a wider pool for comparison. The tribunal limited its pool for comparison to only Mrs Dobson’s team, which comprised eight women and one man. It found that all members of her team could comply with the requirement to work flexibly, apart from Mrs Dobson, and accordingly that women did not suffer a group disadvantage. Mrs Dobson claimed that limiting the pool for comparison to such a small group was not an adequate or effective test of indirect discrimination; in particular, that comparing her position with only colleagues in her team would not be comparing like for like, as these colleagues did not have caring responsibilities for young children. The EAT agreed with Mrs Dobson that the appropriate pool for comparison comprised all the community nurses employed by the NHS Foundation Trust, because they were all subjected to the requirement to work flexibly.
The tribunal was also wrong to require evidence that women as a group were disadvantaged by the requirement to work flexibly. The EAT considered a number of legal authorities and concluded that the tribunal should have accepted, without evidence, that women bear the greater burden of childcare responsibilities than men and that this can limit their ability to work certain hours. A tribunal must take into account this “childcare disparity", if relevant. The EAT did, however, acknowledge that the matter is not “set in stone”, and that the childcare disparity may not apply in the future. However, despite men now bearing a greater proportion of child caring responsibilities than they have historically, the position is far from equal.
The EAT also emphasised that, for indirect sex discrimination to arise, it does not need to be impossible for a woman to comply with her employer’s requirement to work flexibly. The fact that compliance is possible but with real difficulty, or with additional arrangements having to be made, or by shifting the childcare burden on to another, can still mean that there is a disadvantage amounting to indirect sex discrimination. In Mrs Dobson’s case, although her husband was available at weekends to take care of the children, the EAT acknowledged that the requirement to work flexibly still subjected Mrs Dobson to a disadvantage because of her childcare responsibilities.