Is it discriminatory for an employee to be dismissed for not working weekends?

The Employment Appeal Tribunal (“EAT”) has considered in the case of Dobson v North Cumbria Integrated Care NHS Foundation Trust whether an employee had been subjected to indirect sex discrimination when she was dismissed for being unable to work on weekends in line with the Trust’s policy on flexible working.

Background

The Claimant was employed by the Respondent, an NHS Foundation Trust, as a community nurse. The Claimant worked fixed days each week, however in 2016 the Respondent wanted to introduce more flexible working, which included a requirement that community nurses work flexibly and at the weekends. The Claimant was not able to do this because she had caring responsibilities for her three children, of which two are disabled. Following meetings to discuss these working arrangements and after explaining that she could not comply with this new policy, the Claimant was dismissed by the Respondent. The Claimant then brought claims of unfair dismissal and indirect discrimination to the Employment Tribunal (“ET”).

The Law

Under the Equality Act 2010, indirect discrimination is where a person (or here, an organisation) (A) discriminates against another (B) if A applies to B a provision, criterion or practice (“PCP”) which is discriminatory in relation to a relevant protected characteristic of B’s.

A PCP can be a number of things, but in this case it was the Respondent’s flexible working policy which was applied to the community nurses. The Claimant’s protected characteristic was her sex, as she sought to link this to her childcare responsibilities.

Indirect discrimination can potentially be justified, but only where an employer can demonstrate that the PCP which they have applied is a proportionate means of achieving a legitimate aim. This could include ensuring the health, safety and welfare of employees or in order to meet the needs of the business and to run an efficient service.

Decision

The ET dismissed the claims, finding that in relation to the indirect sex discrimination claim that no evidence had been produced to support the argument that the PCP had put women at a particular disadvantage when compared to men. The Claimant appealed to the EAT.

The EAT allowed the appeal, deciding the ET’s findings on justification and unfair dismissal could not stand. The EAT concluded that the ET should have taken account of the fact that, because of their generally greater childcare responsibilities, women are less likely to be able to manage certain work patterns than men are and that this can limit their ability to work particular hours. Whilst this has not been recorded as part of any legislation, it is something which courts at all levels have taken note of for a number of years. The EAT also found that the ET should have considered the community nurses working across the Respondent as a whole, rather than looking solely at those who worked in the same team as the Claimant. The claim was remitted to the same ET for reconsideration.

Comment

This case is a useful illustration of the dangers in implementing a policy which affect fundamental aspects of the employment relationship (working hours in this particular case) which could be indirectly discriminatory, even where that is not the employer’s intention in the introduction of a particular policy.

This continues to be a developing area which will be of interest to many. In particular, it is worth highlighting that Working Families, a UK-based work-life balance charity was able to intervene in this case in order to make submissions on the “childcare disparity” issue to further their aim of removing barriers that those with caring responsibilities face in the workplace.

However, notwithstanding the important points which the EAT has made, given that this case has been remitted to the same ET to reconsider matters, it may still be that the Respondent can argue that the introduction of the policy in this particular case was a proportionate means of achieving a legitimate aim, for example in order to provide a safe and efficient service, which could a potential justification for this policy which would otherwise be indirectly discriminatory. For more information on diversity and discrimination issues, visit our services page here.

Case reference: Dobson v North Cumbria Integrated Care NHS Foundation Trust UKEAT/0220/19

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