Discrimination Law – The Childcare Disparity

By Gary Smith


The Employment Appeal Tribunal has ruled on a landmark case brought by a nurse who was dismissed because she was unable to meet her employer’s new requirement for staff to work flexibly including at weekends. The Claimant has 3 children, two of whom are disabled.

In Dobson v North Cumbria Integrated Care NHS Foundation Trust, the EAT ruled that the original tribunal should have taken into account the fact that women generally bear the greater burden of childcare responsibilities than men. As such their ability to work flexibly can be impacted.

The President of the EAT, Mr Justice Choudhury stated ‘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 tribunal erred in not taking account of it and in treating the claimant’s case as unsupported by evidence. The childcare disparity is so well known in the context of indirect discrimination claims and so often the subject of judicial notice in other cases that it was incumbent on the tribunal, in the circumstances, to take notice of it here.’

He added that this was a case ‘where the relationship between the childcare disparity and the provision, criterion or practice (PCP) in question is likely to result in group disadvantage being made out. Indeed, it can be said that the PCP was one that was inherently more likely to produce a detrimental effect, which disproportionately affected women.’  The PCP was the requirement to work flexibly including at weekends.

This is a significant case in discrimination law, reflecting formally as it does the additional childcare burden working mothers typically suffer. Employers must, whenever considering changes to terms and conditions, give thought to the potential impact upon working mothers with childcare responsibilities and any changes which may adversely affect working mothers more than fathers would only be permissible where the changes are a proportionate means of achieving a legitimate aim.

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