The EAT has held in the landmark decision of Dobson v North Cumbria Integrated Care NHS Foundation Trust, which is being hailed as a victory for working mothers, that Employment Tribunals must now take judicial notice of and consider if relevant “the childcare disparity” which exists between women and men, in that women still experience the greater burden of childcare responsibilities than men and this can adversely impact on their ability to work certain hours or at weekends.
Despite the increased burden of childcare responsibilities that many men have taken on during the pandemic, whilst they have had to work from home, it is still the case that child care responsibilities overall are not shared equally between women and men and it is likely that women will continue to or will share an even greater burden of childcare responsibilities once lockdown restrictions are eased further and working parents can return to their physical workplaces. It is predicted that a greater proportion of men than women will return on a more regular basis to their physical workplaces once lockdown eases.
Judicial notice means that Tribunals and Courts can accept the “childcare disparity” as a proven fact, which is not in dispute. Employers should therefore be aware that the burden of proof on female employees who are mothers and who are considering bringing indirect sex discrimination claims against their employer on childcare grounds has been somewhat relaxed by this decision.
In this case, a community nurse, who was the mother of three children, two of whom were disabled, worked fixed days each week due to her childcare responsibilities. The NHS Trust introduced a requirement that all community nurses work flexibly, which one would think would benefit working mothers, however this provision, criterion, or practice (“PCP”) included a requirement to sometimes work at weekends, with which the Claimant could not comply because of her child care responsibilities. Her employment was terminated as a result. Her claims for indirect sex discrimination and unfair dismissal were dismissed by the Employment Tribunal (“ET”) and she appealed to the Employment Appeal Tribunal (“EAT”.)
Ms Dobson’s appeal succeeded on the following grounds. The ET should not have limited the pool for comparison to the specific community nursing team in which the Claimant worked. All community nurses in the Trust, not just the Claimant’s team, had to work flexibly, including weekends as required from time to time, and therefore the relevant pool for comparison was the wider pool of all community nurses in the NHS Trust, not just the narrow pool which the ET considered, which was limited to the Claimant’s own local community nursing team.
The EAT also held that Claimants do not need to provide evidence in every case proving group disadvantage. This is significant. The ET should have taken judicial notice of the fact that women were less likely than men to be able to work certain patterns, such as weekends, due to their greater share of childcare responsibility. The PCP of having to work weekends was inherently more likely to produce a detrimental effect, which disproportionately affected women.
The case will now be remitted to the ET to be reheard.
