Childcare Responsibilities and Sex Discrimination – EAT Decision Welcomed by Working Mothers

July 5, 2021

The Employment Appeals Tribunal (EAT) has ruled that an employee who was dismissed for refusing to comply with a new policy requiring her to work weekends was unfairly dismissed.

The claimant, Ms Dobson, was a community nurse for North Cumbria NHS Foundation Trust who had always worked on fixed days due to her childcare responsibilities. The Trust introduced a new “flexible working” policy, which required community nurses to work on some weekends, but Ms Dobson was unable to comply with these new requirements due to her childcare responsibilities.

Ms Dobson was then dismissed as she told her employer that she could not comply with this new policy, and brought a claim for unfair dismissal and indirect sex discrimination. Her claim was that as a woman, she was statistically more likely to have childcaring responsibilities which prevented her from being able to work on weekends and was therefore put at an unfair disadvantage by the new policy.

What was the decision?

The Employment Tribunal initially held that Ms Dobson’s dismissal was not unfair, as being a person with caring responsibilities, in itself, was not protected under the Equality Act 2010.

However, on appeal, the EAT found that the Employment Tribunal had arrived at the wrong decision as it had failed to take into account the “childcare disparity” faced by women, who it is recognised are more likely (statistically) to bear the majority of childcare responsibilities.

The EAT therefore decided that the Tribunal had been wrong to dismiss Ms Dobson’s unfair dismissal and discrimination claims.

The decision is being hailed as an important ruling by formally recognising women’s disproportionate children burden as a fact to be considered in future sex discrimination cases. This is especially likely to be welcomed as the COVID-19 pandemic is believed to have exacerbated the caring burden disparity between working women and men.

Guidance for employers

It is always important, from an indirect discrimination point of view, for employers to be cautious about their workplace policies and try to ensure there is no adverse impact on certain groups of individuals.

We would therefore recommend that employers:

• Consult with employees about any new policies they propose to roll out, to gain insight and feedback

• Carefully consider whether any new policy will have an adverse impact on certain groups of staff, with particular consideration given to the protected characteristics under the Equality Act 2010

• In relation to working parents, if time off is needed to look after children, ensure they are made aware of their rights in relation to emergency dependants’ leave, parental leave and flexible working requests.