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Working mother wins her appeal against unfair dismissal and indirect discrimination

Reasons to choose Wilson Browne

On 22 June 2021, the Employment Appeal Tribunal (EAT) released its judgment in the case of Mrs Dobson v North Cumbria Integrated Care NHS Foundation Trust (“the Trust”).

In brief, Mrs Dobson (a community nurse) appealed against the ruling made by the Carlisle Employment Tribunal who found that she had not been unfairly dismissed and/or subjected to indirect discrimination as a result of her employer’s proposed changes to working arrangements.

During 2016, the Trust put forward their requirement for the community nurses to work one weekend every so often. Mrs Dobson rejected this request on the grounds that she has two disabled children for whom she must provide childcare – she was subsequently dismissed from her role.

What is indirect discrimination?

Under s19 of the Equality Act 2010, this is where an employer seeks to implement a policy, criterion or practice (PCP) by assuming equality of treatment (i.e. it is applied equally to all) but subsequently disadvantages a group of people who share a protected characteristic.

The use of a PCP can be legally justified if it is a “proportional means of achieving a legitimate aim.”

What did the Employment Appeal Tribunal say?

The appeal judges found that the Carlisle Employment Tribunal had made errors in various areas of the law, subsequently meaning that the case has been referred back for reconsideration of its findings.

The judgment confirms that the original tribunal failed to:

  • Apply the legal tests to establish indirect discrimination, specifically whether the pool of comparative employees was correctly applied when considering a ‘group disadvantage;
  • Consider the childcare disparity in that women are more likely to bear childcare responsibilities and would therefore be disadvantaged from being required to work flexibly.

As a result of these errors in law, the Carlisle Tribunal has been invited to reconsider their findings on:

  • Whether the PCP was, in fact, justified based on the Trust’s “overarching need for flexibility in a modern and changing Health Service”; and
  • Subject to the justification for the PCP, would there have been a different conclusion in relation to the dismissal being deemed as fair.

It is important to note that the EAT did not say Mrs Dobson was unfairly dismissed or subject to indirect discrimination, it has simply stated that the correct legal tests must be applied when the case is revisited by the Carlisle Employment Tribunal.

What does this mean for Employers?

Dismissing an employee before re-engaging them on new terms and conditions should always be the last resort. If you are faced with a situation where the business may need to implement changes, we highly recommend that you seek legal advice on your unique circumstances. This ongoing case reinforces that the equal application of a policy across the board does not automatically mean it will be fair and could be a costly mistake!

So that’s where the case stands for now – it is likely to be ongoing for some time while the case is remitted for consideration of the above issues.

We will keep you in the loop regarding any further updates on this case as and when they become available.

For further information or to see how we can help contact our Employment Team.

Nikita Shergill

Posted:

Nikita Shergill

Chartered Legal Executive

Nikita is a Legal Executive with the Employment team.