Employers should be alert to the risk of indirect sex discrimination claims when requiring flexible work schedules, particularly if these involve changeable or unsociable hours. The EAT has confirmed in Dobson v North Cumbria Integrated Care NHS Foundation Trust that female employees seeking to show that a requirement for flexible hours is indirectly discriminatory may not have to provide their own supporting evidence to establish group disadvantage; judicial notice should still be taken of the fact that women bear the greater burden of childcare, notwithstanding recent progress in terms of men taking on more responsibility, and so are less likely than men to be able to accommodate certain flexible working patterns. This “childcare disparity” will mean that it is highly likely that group disadvantage is accepted in relation to requirements such as night hours, weekends or changing shift patterns (where the hours are dictated by the employer), meaning the main focus of claims in those cases will be on whether the employer’s requirement is justified.
However, it does not mean that every requirement to work flexibly will automatically be accepted as disadvantaging women – some types of flexible working arrangements will be favourable to, or not more difficult for, those with childcare responsibilities. In those cases the claimant will need to establish group disadvantage in a different way, through statistical evidence, by extrapolation from their individual disadvantage (assuming this is not highly unusual), or by showing that the disadvantage is inherent in the requirement.
The EAT also made clear that it does not need to be impossible for an employee to comply with a requirement to be disadvantaged: the fact that compliance is possible but with real difficulty, or with additional arrangements having to be made, or by shifting the childcare burden onto another, can still mean that there is a disadvantage.
In this case, a community nurse had been working two fixed days a week while her mother-in-law provided childcare. She was required to change to work variable hours including at weekends, with no ability to choose hours. The EAT considered that the tribunal should have taken judicial notice of the childcare disparity and accepted that the new requirement created a group disadvantage for women (even if all the other women in the particular comparator group were able to comply). The claimant herself was disadvantaged notwithstanding that the employer gave as much notice as possible of the hours required and her husband was available at weekends to help.
The tribunal had found that the requirement was justified in any event (by the employer’s legitimate aim of providing a safe and efficient nursing service) but this issue was remitted for reconsideration. The tribunal had incorrectly identified the comparator pool (limiting it to the claimant’s immediate team rather than all nurses to whom the requirement was applied) and so had not taken into account the impact on the whole pool when determining whether the measure was a proportionate means of achieving its aim.