On 22 June 2021, Mr Justice Choudhury, the President of the Employment Appeal Tribunal (EAT), sitting with lay members handed down judgment in Dobson v North Cumbria Integrated Care NHS Foundation Trust UKEAT/0220/19/LA. The EAT clarified the law on indirect discrimination in a number of important respects including:
- how to identify the correct pool for comparison;
- how the burden of proof operates; and
- how particular disadvantages can be established by claimants in such cases.
The EAT also held that the employment tribunal should have taken judicial notice of the “childcare disparity”. Choudhury J coined this phrase to describe the fact that women bear the greater burden of childcare responsibilities than men and that this can limit their ability to work certain hours.
The claimant, a mother of three children (two of whom are disabled) worked as a community nurse in the Cockermouth Community. Due to her childcare responsibilities, she worked fixed days each week.
Following a review in 2016, the respondent Trust sought to introduce more flexible working. In particular, it introduced a requirement that all community nurses work flexibly, including working at weekends (the PCP). The claimant was unable to comply with such a requirement because of her caring responsibilities and she was subsequently dismissed.
The claimant commenced employment tribunal proceedings against her former employer for indirect sex discrimination and unfair dismissal. Both of her claims were dismissed by the employment tribunal. In respect of the indirect sex discrimination claim, the tribunal considered group disadvantage by reference to the claimant's co-workers only (nine individuals) and further that no evidence had been put before it to support the contention that the PCP put women at a particular disadvantage compared to men.
The EAT’s judgment
The claimant’s appeal succeeded on four grounds. First (Ground 2 of appeal), the EAT held that the employment tribunal had erred in limiting the pool for comparison to the specific community nursing team in which the claimant worked. The tribunal correctly identified the PCP which had been applied to all community nurses across the Trust. Logic therefore dictated that the appropriate pool for comparison was all community nurses. Importantly, the EAT held that it was incumbent on the employment tribunal itself to identify a pool comprising all persons affected by that PCP.
Next, (Ground 3), the EAT held that claimants are not required to specifically adduce evidence in support of their contention that there was group disadvantage in every case. In this case, the claimant had pleaded that she was placed at a particular disadvantage as a woman by the PCP “on the basis that women are more likely to be child carers than men”.
The EAT concluded that the tribunal should have taken judicial notice of the fact that women, because of their childcare responsibilities, were less likely to be able to accommodate certain working patterns than men. It described this as a well-known fact that had been the subject of judicial notice in numerous other cases (general guidance on the circumstances in which an tribunal may or should take judicial notice of a particular matter is contained in paragraphs 42 and 48 of the EAT’s judgment).
On the facts, the EAT considered that the claimant’s case was one “where the relationship between the childcare disparity and the 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: see MoD v DeBique  IRLR 471 (EAT)”.
In respect of the finding on justification, although this is a finding of fact that will not readily be disturbed on appeal, the EAT found that as the employment tribunal’s analysis of justification was based on an erroneous pool that potentially undermined the conclusion as to the disadvantage in question, the conclusion on justification could not be treated as safe (Ground 5).
Finally, in general terms a finding of indirect discrimination would not necessarily render the dismissal unfair. However, in this case the reason for dismissal (i.e. the inability to comply with the need for all community nurses to work flexibly) was inextricably linked to the PCP giving rise to the alleged indirect discrimination. As such the EAT held that because of errors of law found to have been made in respect of the indirect discrimination claim there was the possibility of a different conclusion on the unfair dismissal claim (Ground 6). The unfair dismissal claim was therefore remitted to the employment tribunal.
The following issues were therefore remitted to the same employment tribunal:
- Can the respondent show the PCP to be a proportionate means of achieving a legitimate aim?
- Was the claimant's dismissal unfair?
- But for that unfairness, what is the chance that the claimant would have been fairly dismissed by the respondent and on what date (Polkey v AE Dayton Services Ltd  ICR 142)?