The Claimant, Ms Dobson, was employed as a community nurse. She was a working mother of three children, two of whom were disabled. The Claimant had a long standing arrangement to work two fixed days a week. The Respondent requested to change this arrangement to include occasional shifts at the weekend. As a result of her childcare obligations the Claimant refused to agree to this change.
Due to her refusal the Respondent engaged in fire and rehire. This involves the dismissal of the employee on their old terms and re engaging on the new terms.
The Claimant brought a case to the employment tribunal of unfair dismissal and indirect sex discrimination. Indirect discrimination is when a provision criterion or practice (PCP) (in this case a requirement to work flexibly) applies to all employees but has a disproportionate impact on a group of people with a protected characteristic. The Claimant argued that this was indirect sex discrimination as women are more likely to be the main child care providers in comparison to men.
This claim was unsuccessful. She successfully appealed to the Employment Appeal Tribunal (EAT) who held that the tribunal should have accepted the fact that women still have more childcare responsibilities which lead them, as a group, to be less likely to be able to work flexibly without hearing evidence on this point. The EAT also held that the PCP meant that the Claimant suffered a disadvantage.
The case was remitted back to the tribunal to consider if the PCP was a proportionate way of achieving a legitimate aim. At this stage, employers need to successfully argue that the discrimination was objectively justified. The Respondent was able to do so in this case. The tribunal’s decision was based on the fact that the Respondent needed to be able to provide round the clock patient care to avoid gaps in service. This need had to be balanced against the disadvantage the Claimant was placed at. The Claimant was also not being asked to fully adhere to the PCP as she was only having to occasionally work on the weekend, not regularly. It was also considered that the Claimant did have family members willing to help her with childcare and she had not been forthcoming with any kind of compromise. Therefore, the Respondent’s decision had been justified.
For employers this case demonstrates the need to consider the possibility of indirect discrimination when making changes to work patterns. In this case the Respondent was praised by the tribunal stating they were “struck by the time and effort” made in the consultation process and how they “sought to explore every conceivable way of meeting its operational requirements and at the same time tried to make allowances for the claimant’s situation, but ran out of options.” This approach is an example of best practice in this situation.
If you have any questions on any of the issues raised in the above article, please contact Natalia Milne.