Tribunal Tale – Dobson v North Cumbria Integrated Care NHS Foundation Trust

A Claimant has successfully appealed to the Employment Appeal Tribunal in a ruling that will potentially have wider implications for working mothers around the country.

The Claimant was a community nurse who worked fixed days. Five years ago, her employer required staff to work flexibly, including weekends. The Claimant was not able to do this because of her caring responsibilities to her three children, two of whom were disabled. The Claimant was dismissed, and her unfair dismissal and indirect discrimination claims were unsuccessful at the Employment Tribunal.

The EAT held that the tribunal had erred in their approach to the choice of pool for establishing a group disadvantage. This is an essential element in an indirect discrimination case. Indirect discrimination is when a rule or practice is applied to all employees but has the effect of treating a specific group less favourably than others.

The tribunal had accepted that a practice had been put in place by the employer, but concluded that as all the other female employees were able to accept the shift changes there was no group disadvantage. However, the EAT concluded that the pool of people needed to be expanded to all community nurses not just the people in the Claimant’s team. The EAT also held that women still bearing the brunt of childcare duties in society should be taken within judicial notice. Judicial notice is a concept where the court can accept a fact as being beyond dispute and does not need to be proven.

Taking this fact into account the EAT was able to conclude that women were less likely to be able to comply with many flexible working requirements. Due to these issues in interpretation the EAT has remitted the case back to the tribunal to be reheard. The employee will then have another chance to argue her case.

For employers it is very important to consider whether protected groups may be adversely affected when making major policy changes. Shift changes or change of hours arrangements are particularly susceptible to challenge on indirect discrimination grounds, especially when this ruling confirms the orthodoxy of what the EAT called the childcare disparity.

If you have any questions on any of the issues mentioned in the above article, please contact Natalia Milne.

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