A tribunal has held in Dobson v Cumbria Partnership NHS Foundation Trust that the trust was entitled to dismiss a community nurse who refused to work more flexibly. This, it said, was a proportionate means of achieving the organisation’s legitimate aims of providing care to patients in the community 24/7, balancing the workload amongst the team and reducing the overall cost of the service.
Basic facts
Ms Dobson was one of a team of ten community nurses, made up of nine women and one man. Seven members of the team, including Ms Dobson, were on Band 5, two were on Band 6 and one was on Band 7. Ms Dobson worked on Wednesdays and Thursdays only.
After reviewing its flexible working arrangements because of increased demands on the service, the trust said that it needed all community nurses to work more flexibly, including at weekends. Ms Dobson explained that as she did not have childcare for her disabled children at weekends, she could not meet that requirement. After a number of consultation meetings, the trust notified her that it intended to dismiss her and rehire her on new flexible terms to include working on days other than Wednesdays and Thursdays. She rejected the offer, and her employment came to an end.
Ms Dobson lodged a tribunal claim of indirect sex discrimination under section 19 of the Equality Act 2010, arguing that the trust had imposed a provision, criterion or practice (PCP) requiring community nurses to work flexibly, including at weekends which put women “at a particular disadvantage” compared to men because of their childcare commitments.
Relevant law
Section 19 states (among other things) that it is discrimination for an employer to apply a PCP if it would put a woman “at a particular disadvantage” compared to a man, and the employer cannot show it was “a proportionate means of achieving a legitimate aim”.
Tribunal and EAT decisions
The tribunal rejected Ms Dobson’s claim, holding (among other things) that she had not provided enough evidence that women were more likely than men to be responsible for childcare.
The EAT, however, overturned that decision, holding that the tribunal should have accepted the fact of the “childcare disparity”. In other words, the generally agreed fact that women are more likely than men to be responsible for childcare. As such, Ms Dobson did not need to prove the point yet again. It, therefore, remitted the case to the tribunal to consider whether the PCP was “a proportionate means of achieving a legitimate aim”.
Decision of second tribunal
Dismissing Ms Dobson’s claim, the tribunal held firstly that the trust had a legitimate aim of providing “care to patients in the community, 24 hours per day, 7 days a week … to balance workload amongst the team and reduce the cost of having to use band 6 and 7 registered nurses on a weekend”. As it was clear from the evidence provided by the trust that the PCP was likely to achieve that aim, the two were “rationally connected”.
Secondly, the tribunal held that the PCP was a proportionate response to that legitimate aim, not least because the only alternative was to exempt Ms Dobson from the PCP completely. It agreed with the trust that this was unrealistic in an era of reduced staffing levels and increased pressure on the services that it offered.
The tribunal also took into consideration the fact that Ms Dobson had been unable or unwilling to compromise. Although the trust had been prepared to relax the number of weekends or bank holidays she would have to work, her only “solution” was to retain her working pattern “unchanged into the future on an open-ended basis. Such an outcome would have done nothing to help achieve the legitimate aim”.
