A tribunal should have assumed, without needing evidence, that there is a “childcare disparity”, meaning that women being less likely to be able to accommodate some working patterns than men because of childcare responsibilities.
The facts
Courts sometimes give “judicial notice” to accept facts as being correct without needing to hear evidence from the parties. Broadly speaking, this happens where the facts are so well known that they can be accepted as being true. Historically, there have been several cases where courts have taken judicial notice of the fact that women bear a greater burden of childcare responsibilities than men.
Mrs Dobson has three children and she was employed by the North Cumbria Integrated Care NHS Foundation Trust as a community nurse. She had a flexible working pattern to accommodate her childcare arrangements. However, when it issued a new rostering policy, the Foundation Trust reviewed all flexible working arrangements and Mrs Dobson was asked to change her working pattern, to include occasional weekend working. Because of her childcare responsibilities, she could not comply with the new working arrangements, she would not agree to the change and her employment was terminated.
Mrs Dobson brought claims in the employment tribunal of unfair dismissal and indirect sex discrimination. Her indirect discrimination claim was pleaded on the basis that “women are more likely to be child carers than men”. The employment tribunal dismissed her claims.
In relation to the indirect discrimination claim, the tribunal held that no evidence had been provided to support Mrs Dobson’s argument that women suffered a particular disadvantage because of the Trust’s requirement that its community nurses worked flexibly at weekends: in fact, the tribunal noted, all the women in the team were able to meet the requirement, except for Mrs Dobson. On this basis she could not show the new arrangements caused group disadvantage (which is required to make out an indirect discrimination claim). The tribunal also held that (even if women in general had suffered a particular disadvantage) the requirement was justified.
Mrs Dobson appealed to the EAT, which upheld her appeal.
The EAT accepted her argument that the comparison pool should have included all community nurses, not just those in Mrs Dobson’s team.
The EAT also accepted Mrs Dobson’s argument that, following existing case law, the tribunal should have taken judicial notice of the fact that more women than men tend to have childcare responsibilities and so are more likely to be unable to comply with flexible working requirements. They noted that while it is true that men do now bear a greater proportion of child caring responsibilities than they did decades ago, the position is still far from equal, and it is still therefore appropriate for courts to take judicial notice of what is known as the “childcare disparity”.
Taking judicial notice of the childcare disparity does not necessarily mean that there is a group disadvantage. This will depend on the particular requirement, or “PCP”, imposed by the employer. However, on these facts, where the PCP was to work flexibly, including at weekends, and the nurses did not have any flexibility to choose working hours or days within certain parameters, the relationship between the childcare disparity and the PCP was likely to result in group disadvantage being made out.
The EAT also upheld Mrs Dobson’s appeal against the tribunal’s finding that the PCP would have been objectively justified.
Mrs Dobson’s claims were remitted to the employment tribunal to be reheard.
What does this mean for employers?
This decision confirms the courts’ long established approach to the childcare disparity.
Childcare disparity does not necessarily mean that any imposition of any requirement to work flexibly will put women at a disadvantage compared to men – the EAT rejected this argument. Some flexible working arrangements will, of course, be helpful to employees with child care responsibilities.
Dobson v 1) North Cumbria Integrated Care NHS Foundation Trust 2) Working Families UKEAT/0220/19
