The Employment Appeal Tribunal (EAT) in Dobson v. North Cumbria Integrated Care NHS Foundation Trust has held that an Employment Tribunal (ET) erred in failing to recognise the fact that women are less likely than men to be able to accommodate flexible working patterns because of childcare responsibilities. The EAT referenced the “childcare disparity” and explained that women tend to bear the greater burden of childcare than men, which can affect their ability to work certain hours. Courts and tribunals have long taken judicial notice of this childcare disparity and the EAT said that the disparity should have been recognised in this case too.

Mrs Dobson was employed as a community nurse for the North Cumbria Integrated Care NHS Foundation Trust, working fixed days within the Community Nursing Team. Following a review, the Trust sought to introduce more flexible working which included a requirement that community nurses work flexibly, including at weekends. Mrs Dobson was unable to comply because of her caring responsibilities for her three children, two of whom are disabled.

Mrs Dobson was dismissed and subsequently claimed unfair dismissal and indirect sex discrimination. The ET dismissed her claims, but Mrs Dobson appealed and Working Families, a charity whose mission is to remove the barriers faced at work by those with caring responsibilities, was granted permission to intervene on the issue of whether the ET should have taken judicial notice of the greater childcare responsibilities of women.

The EAT found that the ET had erred in limiting the pool for comparison to Mrs Dobson’s particular Community Nursing Team – the appropriate pool for comparison was all community nurses within the Trust. The ET had also erred in finding there was no evidence of group disadvantage. The ET should have taken judicial notice of the fact that women continue to bear the greater responsibility for childcare and so are less likely to be able to accommodate flexible working patterns. These conclusions meant that the ET’s findings on justification and unfair dismissal could not stand and would need to be reconsidered.

Interestingly, the EAT did observe that the childcare disparity does not necessarily mean that all requirements to work flexibly will put women at a disadvantage compared to men. It also stated that a blanket approach could result in unfairness and illogical outcomes because some flexible working arrangements are favourable to those with childcare responsibilities.