Nurse discriminated against over shift pattern dispute

An employment appeal tribunal (EAT) has upheld a claim of indirect sex discrimination because the employer had not considered the employee’s childcaring responsibilities.

The claimant in Dobson v North Cumbria Integrated Care NHS Foundation Trust was employed as a Band 5 nurse and worked amongst a team of nine women and one man. She had previously made a flexible working request which was successful because she had to take care of her three children, two of whom are disabled. The flexibility enabled her to work 15 hours a week over two fixed days.

Her employer, having conducted a review of her working pattern in 2013, agreed that her childcaring responsibilities meant that her existing working arrangement could continue. However, in 2016, her employer adopted a new policy which meant that flexible working arrangements were required to be reviewed.

The claimant was later asked to work occasional weekends once a month, but she explained that, given her situation, she would not be able to accommodate a change in her working pattern. The claimant, therefore, refused the suggested working pattern and filed an unsuccessful grievance complaint. Her appeal against this decision was also unsuccessful.

She was offered a fire and re-hire arrangement in 2017 based on new terms which required her to work additional days. A notice of dismissal was given to the claimant after she refused re-engagement under those terms. Her appeal against this dismissal too was unsuccessful and so brought a claim for unfair dismissal and indirect sex discrimination to the ET.

Her claim was dismissed by the ET on the basis that the provision, criterion or practice (PCP) used by her employer was their requirement for all staff to work more flexibly and that it applied to both men and women. It, therefore, could not be said that the PCP disadvantaged the claimant more because of her sex, especially because all other members of her team were able to accommodate the new requirement.

It was further decided that her employer was pursuing a legitimate aim by making the team more flexible.

The claimant appealed to the EAT who upheld the appeal. The EAT held that the ET had erred in its decision and remitted the case to the same ET for reconsideration.

On forming its decision, the EAT found that the pool for comparison should not have been limited to just the claimant’s team. Rather, the claimant’s situation should have been compared to all community nurses within the particular NHS Trust where she was employed. By widening the pool of comparison, it was found that there was evidence of group disadvantage.

Furthermore, the EAT noted that the ET should have considered the fact that generally women are, more often than men, not able to accommodate certain work patterns due to their child-caring responsibilities.

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