Indirect Discrimination and the Childcare Disparity

The Claimant was employed by the Respondent as a Community Nurse and worked fixed days during the week. In 2016, the Respondent sought to introduce a flexible working policy which included a requirement for all Community Nurses to work flexibly, including working at weekends. The Respondent sought to change the Claimant’s terms and conditions of employment by requiring the Claimant to work on a more flexible basis than the fixed arrangements she had had in place for the previous 8 years of her employment. The Claimant, as a mother of three children, two of whom were disabled, was unable to comply with this requirement in light of her childcare responsibilities. She was subsequently dismissed by the Respondent and brought claims for indirect discrimination on the grounds of sex and unfair dismissal.

Both of the Claimant’s claims were dismissed by the tribunal. The Claimant appealed to the EAT.

The statutory definition of indirect discrimination is contained in section 19 of the Equality Act 2010.

In short, a person (A) discriminates indirectly against another person (B) where:

• A applies to B a provision, criterion or practice (PCP).
• B has a protected characteristic, e.g. sex.
• A also applies (or would apply) that PCP to persons who do not share B's protected characteristic.
• The PCP puts (or would put) persons with whom B shares the protected characteristic at a particular disadvantage compared to others.
• The PCP puts (or would put) B at that disadvantage.
• A cannot show that the PCP is a proportionate means of achieving a legitimate aim.

In this case, the Claimant argued that the requirement for Community Nurses to work flexibly, including at weekends, was a PCP, and that this put her, as a woman, at a particular disadvantage when compared to men on the basis that women are more likely to be child carers than men.

The Claimant put forward several grounds of appeal, including the following:

• The tribunal erred in determining the pool for comparison for the purposes of her indirect discrimination claim. It considered group disadvantage by reference only to the small number working in the Claimant’s team instead of across the Respondent as a whole – Ground 2
• The tribunal erred in finding that the Claimant was required to adduce
  evidence demonstrating that women as a group were (or would be) disadvantaged by the requirement to work flexibly, including at weekends. This was a matter in respect of which the tribunal ought to have taken judicial notice – Ground 3

The EAT upheld Ground 2 of the Claimant’s appeal and held that logic would dictate that the appropriate pool for comparison for the purposes of the Claimant’s indirect discrimination claim is all Community Nurses at the Respondent required to work flexibly. The EAT held that the tribunal had erred in limiting the pool for comparison to the Claimant’s immediate team and held that the tribunal should have taken into account all Community Nurses employed by the Respondent (and who were subject to the same requirement to work flexibly), not just those in the Claimant’s team.

The EAT also upheld Ground 3 of the Claimant’s appeal. The EAT considered the relevant authorities on childcare disparity and noted the following in its judgment: “the fact that women bear the greater burden of childcare responsibilities than men and that this can limit their ability to work certain hours is a matter in respect of which judicial notice has been taken without further inquiry on several occasions. […] Whilst the childcare disparity is not a matter directed by statute to be taken into account, it is one that has been noticed by Courts at all levels for many years. As such, it falls into the category of matters that, according to Phipson, a tribunal must take into account if relevant” [46].

The EAT concluded that the tribunal erred by failing to consider the childcare disparity. It held that the childcare disparity is well known in the context of indirect discrimination claims and that it is often the subject of judicial notice in other cases; in light of this, it was incumbent on the tribunal, in the circumstances, to take notice of it in this case.

The EAT remitted the matter to the tribunal to consider the issues of indirect discrimination and unfair dismissal.

This decision acts as a reminder that judicial notice of the childcare disparity is still widely considered by the courts. Employers should ensure they consider the childcare disparity when considering whether proposed changes to employees’ working patterns may be indirectly discriminatory. However, it should be noted that the EAT’s decision does not mean that the childcare disparity will necessarily render a change to a woman’s working hours discriminatory. This will depend on the particular facts and circumstances of the case and will require a detailed analysis of the relevant legal principles.