In a recent landmark ruling a judge at the Employment Appeal Tribunal has found in favour of a community nurse sacked from North Cumbria integrated NHS for refusing to work weekends.
Gemma Dobson is a mother of three children, two of whom are disabled. She worked fixed shifts in order to care for them, but in 2016 a new requirement that community nurses work flexibly, some weekends included, was introduced. Mrs. Dobson was unable to meet that requirement and was dismissed.
She took the matter to a tribunal claiming unfair dismissal and indirect sex discrimination but was unsuccessful. Her appeal, however, reversed that decision.
Mr. Justice Choudhury and two other panel members produced a written report in which it was ruled that ‘childcare disparity’ must be taken into account by employment tribunals where relevant. The ruling acknowledged the considerable progress that has been made in recent times toward equalising care responsibilities between both parents, but pointed out that the reality is often still far from genuine equality.
There is often still a considerable weight of expectation on the mother to shoulder the majority of childcare, and the refusal by the original tribunal to take this into account left Mrs. Dobson in a state of ‘utter disbelief’. Following her successful appeal she paid tribute to the support she had received from the charity Working Families as well as her husband and her legal team.
“It means everything knowing that others also believed in me and my strength in staying dedicated to my journey for justice,” she said. “I truly hope that in the future other working mothers won’t be discriminated against for having caring responsibilities; especially those that care for disabled children.”
The consequences had the ruling gone the other way, as assessed by Jane van Zyl, chief executive of Working Families, would have been ‘a huge step backwards for women’s workplace rights’.
Repeatedly at employment tribunals women are required to prove that they bear the greater burden of caring for children. This being both unfair and unnecessary, it is to be hoped that the ruling in Dobson’s case will bring about meaningful change. In any case there has been a clear warning sounded to employers that working mothers must not be penalised if, as a result of childcare responsibilities, they are unable to work flexibly to meet an employer’s demands.
Mrs. Dobson’s claims of indirect discrimination and unfair dismissal will now return to the employment tribunal for reconsideration.
North Cumbria integrated NHS foundation trust declined to comment beyond saying that it had noted the ruling, but this is understandable given that the original tribunal still has work to do in reconsidering the matter.
Our Comment
This is a very important outcome for all employers. It is vital that employers take account of employees’ (particularly women) childcare responsibilities when requiring flexible working. In this case of course, it came about due to a change in contractual terms rather than at the outset of the employment, but nonetheless fires a cautionary note to employers.
