On 22 June 2021, the President of the Employment Appeal Tribunal handed down judgment in Dobson v North Cumbria Integrated Care NHS Foundation Trust UKEAT/0220/19/LA.
CLICK HERE to read the judgment.
In this landmark victory for working mothers, the EAT has 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 disadvantage can be established by claimants in such cases. Further, the EAT determined that the employment tribunal should have taken judicial notice of the fact that women bear the greater burden of childcare responsibilities than men and that that can limit their ability to work certain hours. Choudhury J termed this fact as “the childcare disparity” and ruled that this is a matter that employment tribunals “must take into account if relevant” (at ).
Mohinderpal Sethi QC, Sophia Berry and Bianca Balmelli represented the successful appellant on a pro bono basis, a community nurse in Cumbria and the mother of three children, two of whom are disabled.
The Claimant worked as a community nurse on fixed days each week as a result of her child caring responsibilities. Following a review in 2016, the Respondent Trust sought to introduce more flexible working. In particular, it introduced a requirement that community nurses work flexibly, including working at weekends. The Claimant was unable to comply 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 tribunal.
Allowing the Claimant’s appeal, the President of the EAT, Mr Justice Choudhury, held that the tribunal had erred in limiting the pool for comparison to the specific community nursing team in which the Claimant worked. The employment tribunal had determined that the applicable provision, criterion or practice was the requirement to work flexibly, including at weekends. This PCP had been applied to all community nurses across the Trust. Logic therefore dictated that the appropriate pool for comparison was all community nurses. The EAT further held that it was incumbent on the employment tribunal to identify a pool comprising all persons affected by that PCP.
The tribunal further erred in rejecting the claim that there was group disadvantage on the basis that there was no evidence of the same adduced by the Claimant. The EAT held 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. This was a case “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)” (at ). Claimants are not required to specifically adduce evidence in support of their contention that there was group disadvantage in every case.
The EAT further held that the employment tribunal’s findings on justification and unfair dismissal could not stand in the light of the errors of law found to have been made in respect of the indirect sex discrimination claim.
Mohinderpal Sethi QC (Co-Head of Employment and Chair of the Employment Law Bar Association) specialises in UK, international and offshore business protection, employment and partnership litigation and arbitration. He was successful in MOD v DeBique  IRLR 471 (a landmark ‘dual’ indirect discrimination appeal case) which was followed by the EAT in Dobson. In 2021 he will be leading Sophia Berry in the first-ever leapfrog appeal from the EAT directly to the Supreme Court (Basfar v Wong  IRLR 268).
Sophia Berry specialises in employment, partnership and commercial law. She has extensive experience in statutory and high court employment litigation and has appeared in a number of appeals as sole Counsel or as a junior to a QC.
Bianca Balmelli specialises in employment and commercial law. She represents both claimants and respondents across the full spectrum of employment law and is regularly instructed to appear at all stages of proceedings.