Employers introducing permanent hybrid working arrangements should be aware of the dangers of treating homeworkers differently to the rest of the workforce. Legal advice which raises this issue tends to be premised on the perception that certain employee groups tend to favour homeworking over others, such as female employees who are considered to bear the greater burden of childcare.

But is this perception grounded in fact and does it stand up to judicial scrutiny? The recent Employment Appeal Tribunal (EAT) case of Dobson v North Cumbria Integrated Care NHS Foundation Trust UKEAT/0220/19 suggests the answer is yes.

The EAT held that the Employment Tribunal (ET) should have taken judicial notice of the “childcare disparity” principle (the fact that women bear the greater burden of childcare than men and this can limit their ability to work certain hours) in cases of indirect sex discrimination.  

  1. The facts

The claimant was a community nurse who worked 15 hours per week over two fixed days, following approval of her flexible working request. Her childcare arrangements had been set up to support that working pattern and on non-working days she had responsibility for her three children (two of whom are disabled).

Following the Trust’s working pattern review in 2016 she was asked to adopt a flexible approach, which would involve her occasionally working during weekends. The claimant rejected the proposal and raised an initial grievance and a subsequent appeal, both of which were rejected. The Trust then proceeded to dismiss and attempt to re-engage her on a contract which specified the new working pattern, whereby the Trust would give her advance notice of any additional days she may be required to work. Ultimately, the claimant’s employment was terminated and her appeal against dismissal was rejected.

The claimant proceeded with claims for unfair dismissal, victimisation and indirect sex discrimination in the ET. A core element of the indirect sex discrimination claim was the assertion that women are placed at a disadvantage due to disproportionately bearing the burden of childcare responsibilities. However, no evidence was put forward to support the argument that the Trust’s practice of requiring community nurses to work flexibly (including weekends) put women at particular disadvantage compared to men. In addition, the other women and the one man in the claimant’s team at work were all able to meet the requirement.  

2. The decisions

The ET dismissed all of the claimant’s claims, and took the view that the Trust’s practice of requiring weekend working applied equally to men and women and there was no disadvantage to women.

However, the claimant appealed and the EAT held that the ET had adopted the wrong approach in relation to group disadvantage and the pool of employees for comparison. The correct population to be considered was all of the community nurses at the Trust, rather than just those in the claimant’s team.

The EAT held that a court or tribunal must take judicial notice of matters set out in statute or which derive from well-established practice or precedent of the courts. However, there are also several broad categories where judicial notice may be taken:

  • where the facts are so well established to a court that they can be accepted without additional enquiry;
  • where the matter may be noticed after referral to reference works or other accepted sources; or
  • where the court exercises discretion to take notice of a relevant matter and may require evidential proof.

Interestingly, the charity Working Families was permitted to intervene in argument on this point. The EAT confirmed that the ET would also need to revisit the issue of group disadvantage to take judicial notice of the “childcare disparity” principle, whereby women are less likely to be able to accommodate certain working patterns than men. Although the principle was not set out in statute, it had been noticed by courts at various levels for some time. Therefore, the ET should have followed the previous authorities in this regard. While the EAT did acknowledge that men now bear a greater proportion of childcare responsibilities, it also pointed out that the position is still far from equal.

3. The lessons for employers

It is not a given that any change to business working patterns will disadvantage female employees. The Trust in this case took a robust “fire and rehire” approach to push through a change.  This will usually be a last resort once all other avenues have been explored, given the legal risk involved.

When it comes to implementing new hybrid working patterns, which many HR teams are currently grappling with, we have been recommending to clients that a flexible approach is adopted. This may be achieved through the adoption of flexible hybrid working policies (which allow scope to reflect individual employee circumstances, such as childcare arrangements), rather than rigid contract changes that may prove more contentious and trickier to adapt in future. It is also worth pointing out the importance of continuing to address individual flexible working requests in the normal way, alongside any business wide changes that may be taking place.  Our HRLaw roadmap back to the office in June discussed these and other issues around the return to the office in further detail.

The EAT has reminded employers that certain well-established principles should be borne in mind when implementing changes to working patterns. If an individual dispute occurs and an indirect discrimination claim results, the ET may be required to take judicial notice of relevant principles, whether a claimant produces supporting evidence or not.

That said, even if an employee overcomes the first hurdle of an indirect discrimination claim, success is not a foregone conclusion. It remains possible for an employer to attempt to justify its approach, by showing it was a proportionate means of achieving a legitimate aim. As such, it is always worth considering the business rationale behind proposed changes at an early stage of implementation.

Contact us

If you have any questions about these issues in relation to your own organisation, please contact a member of the team or speak to your usual Fox Williams contact.


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