Indirect discrimination can be a difficult concept for employers and employees to identify. The case of Dobson vs Cumbria NHS Foundation Trust provides some insight. The case revolved around a mother’s commitment to caring for her children.
Ms Dobson had been working at the NHS trust as a nurse since 2008. She worked for two days per week, Wednesdays and Thursdays. In 2016 the trust changed its policy to a flexible working policy.
The purpose of the policy was to enable the trust to provide 24-7 care to its patients, and would involve all nurses. The shift patterned include working occasional weekends.
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Unable to combine the new flexible working arrangement with finding child-care for her three children, two of which are disabled, Ms Dobson rejected the changes, and subsequently was dismissed.
At the initial tribunal, Ms Dobson claimed unfair dismissal and indirect discrimination, on the basis that women bear most childcare responsibilities and are therefore indirectly discriminated against by the policy.
The tribunal dismissed the claim, since ‘mothers with care responsibilities’ are not a protected group under the 2010 Equality Act. However, the Employment Appeal Tribunal, EAT, found the tribunal’s methodology flawed and sent the case back to tribunal in 2021.
In particular, the EAT criticised the original tribunal for how it considered the role of indirect discrimination in the case.
The ‘childcare disparity’, means that it is accepted that women were more likely to be impacted by working weekends.
In the original ruling, Ms Dobson had only been compared to her immediate male and female co-workers, who could adapt to the change.
However, the EAT ruled it was appropriate to compare her to all community nurses for the discrimination ruling.
Nonetheless, at the subsequent tribunal last month, Ms Dobson’s dismissal was upheld. The court found that Ms Dobson’s dismissal was a proportionate measure to achieving the employer’s goal of providing 24/7 care.
Without Ms Dobson working weekends, the trust would have to staff more expensive senior nurses at these times.
Additionally, the employer had tried to accommodate Mrs Dobson’s needs, such as limiting weekend work to once a month, and giving her weeks of notice before such shifts.
The tribunal found that the trust’s goals of achieving 24/7 care was a legitimate reason for implementing the change. Ms Dobson’s inflexible stance was not compatible with achieving this, and so her dismissal was fair.
So what can we learn? Firstly, the EAT’s ruling sets some important case law for employers: Employers should carefully consider how their decisions impact protected groups. In particular, the EAT’s ruling makes it clear that the care-duties of mothers should be considered.
Furthermore, the employer must present clear reasons for implementing changes that impact their employees’ work arrangements. They must try to accommodate their employees’ needs and dismissal should only be a last resort.
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