The childcare burden: How employers and tribunals can take notice

As a result of the COVID-19 pandemic, many employers are now looking at bringing their work force back to the workplace and contemplating different flexible working patterns. In doing so, it is paramount that employers are carefully considering and monitoring any such flexible working patterns to ensure that women are not disproportionally affected which may result in indirect discrimination claims.

The Employment Appeal Tribunal (EAT) recently ruled that Tribunals must take judicial note of the childcare disparity and accept as fact that women still bear the primary burden of childcare responsibilities which hinders their ability to work flexibility. The fact that Tribunals must take note of the childcare disparity may help working mothers to show that onerous working patterns may be indirectly discriminatory on the grounds of sex.

The law

Indirect discrimination occurs when an employer applies a provision, criterion or practice (PCP) which places individuals who have a protected characteristic at a disadvantage. Employers will have a defence against such a claim for indirect discrimination only if they can show that the PCP had proportionate means of achieving a legitimate aim.

The damages available to Claimants for indirect discrimination are uncapped and so employers should take care to engage in an open dialogue with employees to try and identify a working pattern that works for both parties.

Dobson v North Cumbria Integrated Care NHS Foundation Trust

Ms Dobson was employed as a community nurse by an NHS Trust working fixed days. In 2016, the Trust sought to introduce a requirement requiring community nurses to work flexibly including weekends. Ms Dobson was unable to comply with this due to her caring responsibilities for her three children, two of whom are disabled. She was subsequently dismissed in 2017.

Among other claims, Ms Dobson claimed that her dismissal was indirectly discriminatory on the grounds of sex. The Tribunal dismissed all of her claims and held that whilst they accepted that the Trust had applied a PCP, there was no evidence that the PCP put women at a particular disadvantage compared to men. It noted that, on the contrary, all of Ms Dobson’s female colleagues were able to comply as was the only man in her team. Whilst the Tribunal did have sympathy for Ms Dobson’s particular circumstances, they concluded that the claim had to fail for lack of group disadvantage and held that the Trust were pursuing the legitimate aim of achieving flexible working in order to provide a safe and efficient service.

However, Ms Dobson appeal to the EAT who allowed her appeal. The EAT accepted her argument that the Tribunal had, for the purposes of testing group disadvantage, erred in confining the pool for comparison to the nurses in Ms Dobson’s team instead of all community nurses across the Trust. They agreed that this could result in a potentially unrepresentative pool in terms of childcare responsibilities.

The EAT also held that the Tribunal should have taken “judicial notice” of the fact that women are more likely than men to bear the bulk of childcare responsibilities and so are more likely to be unable to comply with flexible working requirements (‘the childcare disparity’). The EAT remitted the case to be reheard at the Tribunal.

Key take-away for employers

This EAT judgment highlights that judicial notice of childcare disparity is widely considered by the courts which will continue until men are considered to bear an equal proportion of child caring responsibilities. A requirement to work flexibly will not always put women at a disadvantage but employers should tread carefully when implementing any PCP to ensure there is no group disadvantage.

Employers should avoid imposing rigid and onerous working patterns on women with childcare responsibilities by being as flexible as possible and actively discuss with employees to try and find a pattern which works for both parties. Even if such action of an employer is without success, the efforts made will help to justify the working pattern and demonstrate that they have acted proportionately.

Link to judgment – Appeal No. (publishing.service.gov.uk)