Issues surrounding the right (or indeed the obligation) to work flexibly have never been more topical.  With this in mind, the outcome of the recent case of Dobson v North Cumbria Integrated Care NHS Foundation Trust makes for very interesting reading.

The facts

Ms Dobson, a community nurse, began to experience problems at work when her employer attempted to replace her fixed working days with an arrangement under which she was required to work more flexibly, including on weekends. As a mum of three, Ms Dobson wasn’t in a position to work weekends, as a result of which she was dismissed. Ms Dobson brought claims against her employer for unfair dismissal and indirect sex discrimination. In respect of her sex discrimination claim, she argued that the requirement for community nurses to work more flexibly (what lawyers call a ‘provision, criterion or practice’ or ‘PCP’) may have applied to all staff regardless of gender, but it placed women at a particular disadvantage when compared with their male counterparts. Ms Dobson argued that as a result of her childcare commitments, she (and many other women) could not comply with the new ‘PCP’ and the NHS trust for which she worked could not justify its discriminatory effect.

The decision

When this case was heard by an Employment Tribunal, the NHS trust produced evidence to show that all members of Ms Dobson’s team (apart from her) were able to comply with the flexible working requirement, regardless of their gender. This was relied on by the ET in support of its decision to reject Ms Dobson’s claim; in effect, the ET concluded that when looking at the impact of the PCP, there was no evidence of a particular disadvantage being suffered by women, when compared to men.

Ms Dobson appealed to the Employment Appeal Tribunal. She argued that the ET had made a mistake. She said that the ET should not have looked only at the effect of the PCP on her particular team; it should have considered its wider impact on all nurses working right across the trust. Furthermore, Ms Dobson argued that the ET should have recognised the fact that it was well understood that across society, women are often less able to work flexible work patterns because of the additional childcare responsibilities they tend to shoulder. This societal difference between men and women was referred to as ‘the childcare disparity’. Interestingly, where judges take so-called ‘judicial notice’ of matters such as this, sometimes it is not necessary for the court to be provided with specific evidence of such disparities. Instead, it may be appropriate just to acknowledge that this is the way things are and everybody knows it. In this case, by failing to take judicial notice of ‘the childcare disparity’, the Employment Tribunal had made a mistake and their decision was wrong.

The Employment Appeal Tribunal ordered that Ms Dobson’s case should be reheard by the Employment Tribunal.

An interesting one

We often assume that working parents are the people most likely to request flexible working arrangements. But not all attempts to introduce flexibility into the workplace will favour mums and dads. Some arrangements, such as the one in this case, may actually constitute a very distinct disadvantage.

As the COVID-19 lockdown restrictions ease and many employers are considering the prospect of introducing more permanent flexible working arrangements for their staff, careful thought should be given to whether any new ways of working could inadvertently give rise to adverse and unintended consequences for different groups of workers. If you need our help as you think these things through, please get in touch.

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