NHS Trust’s flexible working PCP justified: lessons from Dobson

In the case of Dobson -v- North Cumbria Integrated Care NHS FT the Employment Appeal Tribunal (‘EAT’) upheld an Employment Tribunal’s (‘ET’) decision that a Trust’s flexible working policy requiring community nurses to work flexibly, including weekends, was not indirect sex discrimination.

It is also a rare example of an NHS employer using dismissal and an offer of re-engagement on new terms to force through a contractual change.

Legal background

In this case, the EAT considered how earlier ETs approached the issue of objective justification of a provision, criterion or practice (‘PCP’) in relation to an indirect sex discrimination claim under the Equality Act 2010 (‘EqA 2010’).

Section 19(2) of the EqA 2010, provides that, where a PCP puts the claimant and others who share the claimant’s protected characteristic at a particular disadvantage, it is indirectly discriminatory unless the employer can show it to be a proportionate means of achieving a legitimate aim.

The test for justification of a PCP is set out in Chief Constable of West Yorkshire Police -v- Homer [2012] which states that a PCP is justified if the employer can show that it is a proportionate means of achieving a legitimate aim, the objective measure must correspond to a real need and the ET has to weigh the real needs of the undertaking against the discriminatory effects of the requirement.

When considering the needs of the business, the ET must make its own judgment following a fair and detailed analysis of the working practices and business considerations as to whether the proposal is reasonably necessary (Hardy & Hansons plc -v- Lax [2005])

Factual background

The claimant is this case, Mrs Dobson, was employed by North Cumbria Integrated Care NHS Foundation Trust (‘the Trust’), as a Band 5 community nurse. She had three children, two of whom were disabled. Following the birth of her first child, a flexible working request was agreed for her to work two fixed days per week, namely on a Wednesday and Thursday.

In 2016, the Trust introduced a new flexible rostering policy requiring all community nurses to work flexibly, including weekends (‘the PCP’). As a result of this Mrs Dobson was asked to work an occasional weekend, no more than once a month. Following discussions with the Trust and her trade union representative, she rejected the proposals and any changes to her working arrangements and subsequently raised a grievance. Her grievance and subsequent appeal were rejected following which the Trust confirmed its intention to issue a notice of dismissal and to re-engage her on new terms requiring her to work on additional days. Mrs Dobson did not accept the new terms and her employment terminated in July 2017.

Mrs Dobson brought claims for unfair dismissal and indirect discrimination (claiming that the flexible rostering requirement constituted a PCP disadvantaging women). Her claims were dismissed and she subsequently appealed. The EAT held that the ET should have taken judicial notice of the 'childcare disparity' namely that women bear greater childcare responsibilities than men, limiting their ability to work certain hours. The case was remitted back to the ET to consider whether the PCP was justified.

On remission, the same ET dismissed the claims. It found that the Trust had established that the PCP requiring flexible working including weekends was justified and that the dismissal was not unfair. It held that the PCP was a proportionate means of achieving the Trust’s legitimate aim of providing care in the community 24/7, balancing workloads fairly and reducing the cost of using more senior nurses at the weekend. It was also noted that during the consultation process Mrs Dobson failed to provide any alternative solutions.

Mrs Dobson appealed, contending that, in assessing the proportionality of the PCP the Tribunal had erred in focusing too much on the disadvantage to her, rather than the affected group more widely, and had placed too much weight on her responses during the consultation process prior to her dismissal.

The EAT decision

The EAT dismissed Mrs Dobson’s appeal and held that the ET had correctly considered both the impact on Mrs Dobson and the wider affected group in assessing proportionality of the PCP. It was not irrelevant to consider the disadvantage to Mrs Dobson or her responses.

The EAT confirmed that section 19 EqA 2010 requires both that those sharing the protected characteristic are put to a disadvantage and that the claimant is put to that disadvantage. It is not improper to consider individual impact provided the assessment is not limited to the individual alone.

The ET had considered the available evidence which showed that all community nurses were required to work flexibly (including weekends), no other nurse worked fixed days like Mrs Dobson, nor did they experience difficulties with the flexible working requirement which would lead them to leave employment. The inference was that the seriousness of the detriment to the group of nurses was at the lower end of the scale since all others could apply.

Comment

This case demonstrates that justification arguments are finely balanced but ultimately it is a matter for the ET to exercise judgment based on the evidence available.

Whilst the first ET highlighted the important issue of the childcare disparity which is matter of judicial notice, this decision demonstrates that employers can justify a PCP requiring flexible working where there is a genuine legitimate aim and sufficient evidence of business need.

It is important to note, however, that justification of such a PCP can be difficult - employers should ensure that business needs are clearly documented, alternatives are explored where possible and there is meaningful consultation with affected employees.