Indirect discrimination: no need to prove that women as a group are subject to the “childcare disparity”

Women are still more likely to have caring responsibilities despite increase in fathers caring for children.

Statistics show that fathers are spending increasing amounts of time caring for their children and it is now more common for fathers to seek flexible working and reduced hours because of caring responsibilities. (See the latest Working Families Modern Families Index for recent trends in the split of responsibilities between mothers and fathers.) Is it therefore still true to say that women as a group are more likely to be disproportionately disadvantaged by a requirement to work at certain times, for example at weekends or unsociable hours? For employment tribunals, this is a key question when considering indirect sex discrimination claims.

In order to prove indirect discrimination, the claimant has to show that a policy, criterion or practice (PCP) which applies to everyone puts a group of people who share their protected characteristic at a particular disadvantage. The claimant also needs to show that they have personally suffered this disadvantage. Usually, a claimant will be required to present evidence to show both the group and the individual disadvantage. For example, statistics showing that autistic people perform less well in psychometric testing on recruitment.

But this is not always required. Courts and tribunals must take “judicial notice” of matters which are “notorious” or “well-established”. This means that they can accept an assertion from a party without the need for evidence to be presented on it. In past cases, tribunals and courts have made clear that it is well-established and patently obvious that women as a group continue to be more likely than men to take on the burden of childcare (the “childcare disparity”) and so to be disadvantaged by a requirement to undertake certain working patterns.

In a recent case, the EAT reiterated that employment tribunals should continue to take judicial notice of the childcare disparity without evidence being presented to prove it.

Case details: Dobson v North Cumbria Integrated Care NHS Foundation Trust

Mrs Dobson was employed as a community nurse for a NHS Foundation Trust. Her employer sought to bring in a requirement for all community nurses to work some weekends. Mrs Dobson did not agree, making clear that she had caring responsibilities for her disabled children and could not make alternative arrangements for their care.

The NHS Foundation Trust put Mrs Dobson on notice of termination of her existing contract and offered her a new contract including the new requirement to work some weekends. Mrs Dobson did not accept the new terms and was dismissed. She brought claims for unfair dismissal and indirect sex discrimination to an employment tribunal.

Her indirect discrimination claim was brought on the basis that women in general are at a disadvantage when required to work certain working patterns because they are more likely to have childcare responsibilities; and that she was herself subject to this disadvantage.

The employment tribunal dismissed both claims. It stated that Mrs Dobson had brought no evidence to support the argument that the requirement put women at a particular disadvantage compared to men. The tribunal noted that other women in her team were able to meet the requirement.

The tribunal expressed the view that the claimant may have been disadvantaged by her responsibility for caring for her disabled children, but that this is not a protected characteristic. It commented that (unlike direct discrimination) there is no claim of indirect discrimination by association with disabled people.

Childcare disparity continues to exist despite societal changes

The EAT did not agree with the tribunal’s judgment. It made clear that the tribunal should have taken judicial notice of the childcare disparity and that there was no need for evidence to be presented on this point. The appeal judge commented that “many societal norms and expectations change over time, and what may have been apt for judicial notice some years ago may not be so now. However, that does not apply to the childcare disparity. Whilst things might have progressed somewhat in that men do now bear a greater proportion of child caring responsibilities than they did decades ago, the position is still far from equal.”

The EAT made clear that female claimants can only rely on the childcare disparity to show group disadvantage where it is relevant to the PCP; some working arrangements do not put women in general at a disadvantage because of childcare. It also made clear that claimants must actually plead the childcare disparity to put the tribunal and the respondent on notice of it, even though it is a matter of judicial notice.

The case has now been remitted to the tribunal to consider whether the requirement was justified when taking into account the needs of the employer and the impact on the claimant. It must also consider again whether the dismissal was unfair: if the tribunal finds that the requirement was indirectly discriminatory, it may also find that it was unfair to dismiss because of the refusal to accept the new terms.

Can a discriminatory requirement to work at weekends or unsociable hours be justified?

In some cases, yes.

In this case, the tribunal found that the requirement to work some weekends was justified as the employer was pursuing the legitimate aim of providing a safe and efficient service and the impact of the new working arrangements on the claimant’s team was proportionate to that aim. The EAT made clear that the tribunal should consider the impact on all community nurses at the trust and not only the claimant’s team. However, it is possible that, even after the tribunal takes into account the childcare disparity, it will not uphold Mrs Dobson’s indirect discrimination claim.

Employers considering the imposition of working arrangements which may disadvantage a particular group should ensure that they have given careful thought to and documented the business reasons for those arrangements. These might include the needs of service users, customers and commissioners, as well as financial and operational pressures on the organisation. They should also consider the impact on employees with protected characteristics and ensure that the requirements are necessary and proportionate to the aims of the organisation, including whether there are any other less discriminatory ways to achieve the same aim.