The impact of child care on women still a major issue when changing work patterns
Thursday 22nd July 2021
The difference in child care responsibilities between men and women must be considered in indirect discrimination cases, and is no longer a matter requiring statistical evidence or debate. Essentially judicial notice should be taken that it is a matter of fact that women bear the greater burden of childcare responsibilities compared to men as was decided by the Employment Appeal Tribunal in Dobson v North Cumbria Integrated Care NHS Foundation Trust.
Dobson was a community nurse who had worked set days of Wednesdays and Thursdays for a number of years to coincide with childcare for her three children. The Trust introduced a flexible working requirement under which nurses would work one weekend once a month. Dobson was unable to comply with this requirement due to childcare issues and therefore raised a grievance. Dobson was offered re-engagement on new terms which she did not accept, resulting in her dismissal. Her appeal to her employer was rejected and her claim to the Employment Tribunal for unfair dismissal, victimisation and indirect sex discrimination was dismissed, so she appealed the decision.
The Employment Appeal Tribunal held that the Employment Tribunal had not correctly applied the law. The Employment Tribunal stated that Dobson had not provided adequate evidence that women would be disadvantaged by the policy. However, the Employment Appeal Tribunal stated the fact that women bear the greater burden of childcare responsibilities compared to men, which can limit their ability to work certain hours, is an established fact and should be considered by Judges without necessarily requiring any statistical evidence.
With many workplaces switching to shift work to accommodate COVID-19 precautions, it is important to note that a requirement to work certain hours will usually disproportionately disadvantage women due to childcare responsibilities. You should seek advice before effecting compulsory changes to working hours or introducing policies which may disproportionately affect one group of employees to mitigate the risks of indirect discrimination claims.
If you would like to discuss this further, then please contact one of our employment experts below. To view the full July Employment Law Update, click here: