The childcare disparity – the EAT holds that it still exists

Over 20 years after the Court of Appeal accepted that a tribunal could rely on its own knowledge that the burden of childcare falls disproportionately on women, the EAT has confirmed that the childcare disparity still exists and does not need to be proven in an indirect sex discrimination claim.

Flexible working arrangement revoked

Dobson v North Cumbria NHS Trust was a case in which the employer revoked a long-standing flexible working arrangement.  Ms Dobson was a community nurse who was only able to work two days per week.  Those days had to be fixed to allow her to care for three children, two of whom were disabled.  When the Trust introduced a new policy, which required its community nurses to work variable days including weekends, Ms Dobson was unable to comply.  Her employment was terminated as a result.  She brought claims for unfair dismissal and indirect sex discrimination.

Was a variable working schedule indirect sex discrimination?

The tribunal accepted that the Trust’s new policy put Ms Dobson at a substantial disadvantage, bearing in mind her personal circumstances.  But when it came to the question of whether the policy disadvantaged women as a group, the tribunal held that it did not.  It found that Ms Dobson had put no evidence before it to support the fact that more women than men could not comply with the new working schedule; all other nurses within Ms Dobson’s team, both men and women, were able to meet the requirement.  This led the tribunal to conclude that women as a group did not find it more difficult to comply with a policy of variable working days, including weekend working.  It dismissed the claim for indirect sex discrimination.

Unpredictable hours can be problematic for women

At the appeal stage, Working Families, the work-life balance charity, was given permission to intervene in the case.  They gave evidence that difficulties for women persist with evening and weekend working and unpredictable hours are particularly problematic.  This was uncontroversial and they argued that the tribunal should have disapplied any requirement for evidence.

A fact so notorious and well established 

The EAT overturned the tribunal’s finding.  It held that there was no requirement for Ms Dobson, or claimants in indirect sex discrimination claims generally, to put forward evidence that women are disadvantaged by a requirement to work flexible or unpredictable hours.  The fact that women bear a greater burden of childcare responsibility than men is so notorious and well established that a tribunal was permitted to take “judicial notice” of it, without the claimant needing to put forward evidence.  

Changing societal norms

For now, this case resolves the uncertainty as to whether evidence that women bear the greater burden of childcare is necessary in indirect sex discrimination claims.  It makes it more straightforward for a claimant to successfully bring a claim where the employer imposes a requirement to work a variable or unpredictable schedule.  However, the EAT acknowledged that the matter was not set in stone: societal norms and expectations will change.  It noted that although there had been progress, in so far as men bear a greater proportion of childcare responsibility than they did decades ago, the position remains far from equal.  

For information about potential reforms to parent’s workplace rights, click here.