Dobson v North Cumbria Integrated Care NHS Foundation Trust

By Jo Seery, Professional Support Lawyer

Background 

Mrs Dobson was employed as a community nurse by North Cumbria Integrated Care NHS Foundation Trust within the Cockermouth nursing team. Following the birth of her first child, she made a flexible working request, and it was agreed she would work a fixed part-time pattern of 15 hours per week on Wednesdays and Thursdays. A review of her flexible working took place in 2013, by which time Mrs Dobson had three children, two of whom were disabled. It was agreed to maintain her flexible working pattern in view of her caring responsibilities.

In 2016, the Trust issued a new rostering policy and reviewed all flexible working arrangements across the Trust. In a meeting with the district nurse team leader, Mrs Dobson was asked to work occasional weekends, which she refused due to her childcare responsibilities. She submitted a grievance, which was not upheld. The Trust consulted with Mrs Dobson and issued a notice of dismissal and re-engagement on new terms, requiring her to work different days, subject to notice being given. Mrs Dobson refused and her employment was terminated. 

After her appeal against dismissal was rejected, Mrs Dobson brought claims for indirect sex discrimination and unfair dismissal. Her claims were initially dismissed by the employment tribunal on the ground that there was no evidence that the flexible working policy put women at a disadvantage. On appeal the Employment Appeal Tribunal (EAT) held that the tribunal should have taken judicial notice of the fact that women bear greater childcare responsibilities than men.  

Mrs Dobsons case was remitted back to the employment tribunal to determine if the requirement that community nurses work flexibly including weekends was justified and if her dismissal was fair. The employment tribunal held that the flexible working requirement was justified as a proportionate means of achieving the Trusts legitimate aim of providing 24/7 care in the community.  It balanced this against the disadvantage to Mrs Dobson which it considered was at the lower end of the scale in light of the childcaring arrangements available to her which meant she could with “difficulty” manage an occasional weekend with notice.

Mrs Dobson appealed to the EAT again on the ground that the Tribunal had failed to consider the discriminatory impact on the pool of workers to whom the flexible working requirement applied. Instead. it had focused on the impact on her and her responses during the consultation. 

Key Issues 

Indirect discrimination  

Indirect discrimination occurs where: 

1. A provision, criterion or practice (PCP) is applied to everyone. 
2. The PCP puts those who share a protected characteristic (e.g. sex) at a particular disadvantage when compared with others who do not share the protected characteristic. 
3. The PCP puts the individual at a disadvantage; and 
4. The employer cannot show that the PCP is a proportionate means of achieving a legitimate aim. 

The key issue on appeal  

The central issue for the EAT was whether the Tribunal had erred in its assessment of whether the Trust’s requirement for flexible working (including weekends) was justified. 

In particular: 

• Whether the Tribunal had placed too much emphasis on the impact on Mrs Dobson individually, rather than the wider group affected 

• The extent to which the employer should have investigated the impact of the PCP on others affected by it  

• Whether it had given undue weight to her responses during the consultation process and the fact she had not suggested alternatives 

• Whether its overall proportionality assessment was flawed 

Outcome 

The EAT (Mr Justice Choudhury presiding) dismissed the appeal. 

It held that: 

• The Tribunal was required to consider both the disadvantage to Mrs Dobson and the wider group affected when assessing proportionality and had done so 

• The requirement to justify a PCP should not be an unreasonable burden. It was not claimed that others had suffered disadvantages and the employer’s evidence that no other employee had complained that they were unable to comply was not challenged. 

• It was not an error to take into account Mrs Dobson’s responses during consultation where it had been made clear that she could not comply with the requirement at all  

• The Tribunal had carried out a lawful and balanced assessment of justification, taking into account the employer’s evidence of the need to provide care to patients in the community, 24/7 by balancing the workload amongst the team and reducing the cost of having to use band 6 and 7 registered nurses on a weekend 

• There was no basis to interfere with its conclusions, absent a perversity challenge  

As a result, the findings that the PCP was justified and that the dismissal was fair were upheld. 

Why This Matters 

This decision confirms that when assessing justification in indirect discrimination claims: 

• Tribunals need only consider the impact on the claimant as compared with the group to whom the PCP is applied.  

• There is no requirement on an employer to provide a forensic analysis of the impact of the PCP on every employee in the affected group.  

• An employee’s responses may be relevant to proportionality. 

The case emphasises the importance of gathering evidence of the disadvantages suffered by others and how that compares to those suffered by the individual. The fact that an individual has had a flexible working pattern in place for a number of years may not by itself be enough where the employers’ circumstances change. In this case there was no evidence that others could not comply with the requirement to provide more flexible working.