It is me again, with another interesting case to update you all on. A case which sets out to be quite a precedent for working mothers and the particular rights they may have should their employer ask them to change their hours of work.
In this particular case, Dobson, a community nurse, worked fixed shifts in order to care for her 3 children, two of whom were disabled. Her employer, North Cumbria Integrated NHS Foundation Trust, asked that she be more flexible with the hours she worked, which could include the need for her to work weekends. Dobson could not commit to this, so her employer fired her.
Dobson was initially unsuccessful at Tribunal, citing unfair dismissal and indirect sex discrimination as she did not produce evidence to support the argument that the new requirement put woman at a particular disadvantage compared to men. What also did not help is that there was evidence that others in her team, both men and women, were able to comply, so the Tribunal dismissed her claim.
Dobson did, however, go onto win her appeal before the Employment Appeal Tribunal (EAT). In the EAT’s judgement, they stated that ‘childcare disparity’ was a matter that the Tribunal “must take into account if relevant”. They went on to state that “whilst things might have progressed somewhat in that men do now bear a greater proportion of childcaring responsibilities than they did decades ago, the position is still far from equal”. They explained that the Tribunal should not have limited the pool for comparison to the team, as the appropriate pool for comparison was all the community nurses employed by the Trust. They also stated that although Dobson did not have specific evidence of the fact that women, because of their childcare responsibilities, were less likely to be able to accommodate different working hours, the Tribunal still should have taken notice of such matters and considered childcare disparity within their decision.
This is an important landmark decision as it gives clear warning that working mothers with caring responsibilities should not be penalised if they are not able to work flexibly to meet business needs or demands of a service. It also sets a clear precedent that Tribunals must take into account the disparity in childcare loads between men and woman when making their judgements.
Employers should be sure to take the above decision into account when requiring their employees to change their working hours. Having ongoing communication and open transparency with your employees will enable you to be aware of their individual circumstances which will, in turn, allow you to work together towards working arrangements that can hopefully suit all parties.
If you need any advice on anything mentioned above or have any other queries you want to run by us, then please do get in touch with a member of the team.