An Employment Tribunal has passed a judgement which found that women, due to their caring responsibilities, are less likely to be able to accommodate certain working patterns compared to men.
An Employment Tribunal Appeal successfully challenged a previous decision which failed to account for the Claimant’s caring responsibilities, arising from her role as a mother.
The claimant, Mrs. Dobson, was employed as a community nurse and was mother to three children, two of which have disabilities.
After the birth of her first child, the claimant made a flexible working request and agreed to work 15 hours per week over two fixed days, namely on Wednesday and Thursday.
However, in 2013, the employer held a working pattern review with Mrs. Dobson where she was asked to work the occasional weekend. Mrs. Dobson refused on the basis of her caring responsibilities as a mother of children with disabilities and her domestic situation.
This conversation was repeated again in 2016 when the employer asked Mrs. Dobson to work “no more than one weekend a month”. However, in light of the discussion, Mrs. Dobson commenced a period of sickness absence.
Following this conversation, Mrs. Dobson raised a grievance which was subsequently rejected.
Finally in 2017, the employer stated that it had no other option than to dismiss Mrs. Dobson and re-hire her on new terms requiring her to work on additional days subject to the Respondent giving notice of any different days to be worked.
The claimant refused this proposition and was given notice to terminate her employment.
To the Employment Tribunal, Ms. Dobson brought forward claims of unfair dismissal, victimisation and indirect discrimination of the basis of the protected characteristic of sex.
However, the initial Employment Tribunal dismissed all claims as it stated that the regulations set out by the employer required all community nurses to work flexibly, including at the weekend. It further expressed that this applied to both men and women within the team.
It also stated that the claim put forward – with the protected characteristic cited as “being female with caring responsibilities” – stretched the wording of the Equality Act too far.
This decision has since been overturned with the Employment Appeal Tribunal ruling that the initial Tribunal erred in not taking judicial notice of the fact that women, because of their childcare responsibilities, were less likely to be able to accommodate certain working patterns than men.
Jane van Zyl, CEO of Working Families, who gave evidence to the Tribunal, said:
We are delighted with the result in Mrs. Dobson’s case. This has clarified and reinforced the existing protection for working mothers from discrimination: something that many women who come to us for help rely on in their cases. We know that women have shouldered the major burden of caring responsibilities through the pandemic.
As the economic impact of COVID takes hold and the furlough scheme comes to an end, this judgement is a welcome protection that makes it clear that anything that impacts on childcare impacts disproportionately on women.
Of course we want to live in a world where caring responsibilities are shared equally, but the hard truth is that we are nowhere near that yet. To lose this case would have represented a huge step backwards for women’s workplace rights, and we are really pleased with the judgement.
It is expected that this case will be remitted to the same tribunal to consider the issues of indirect discrimination and unfair dismissal again.
Monica Sharma is an English Literature graduate from the University of Warwick. As Editor for HRreview, her particular interests in HR include issues concerning diversity, employment law and wellbeing in the workplace. Alongside this, she has written for student publications in both England and Canada. Monica has also presented her academic work concerning the relationship between legal systems, sexual harassment and racism at a university conference at the University of Western Ontario, Canada.
