Transcription

• Speaker #0

  Today in the Indicator HR and Employment Law podcast, we're discussing the judgment in the case of Dobson and North Cumbria Integrated Care NHS Foundation Trust, in which the Employment Appeal Tribunal was asked to determine whether an NHS employer's requirement for its community nurses to work flexibly, including at weekends, was objectively justified. D worked as a community nurse for an NHS trust. From about 2008 De had a fixed working pattern whereby Due to her caring responsibilities for her children, she would only work on Wednesday and Thursday each week. In 2016, the employer introduced a new Flexible Working Policy, the PCP, which required its community nurses, including D, to work flexibly, including at weekends. D was clear from the outset that due to her childcare responsibilities, she could not comply with that request and she was eventually dismissed. D's claims of indirect discrimination and unfair dismissal were initially dismissed by the tribunal. However, D successfully appealed to the Employment Appeal Tribunal, which held that the tribunal had erred in concluding that there was no evidence of group disadvantage for a claim of indirect discrimination, and that the tribunal ought to have taken judicial notice of the childcare disparity, but being that women bear a greater burden of childcare responsibilities than men. D's claim was sent back to the same tribunal to consider, among other things, whether the employer could show the PCP to be a fair and proportionate means of achieving a legitimate aim. In deciding the claim on this basis, the tribunal held that the employer had objectively justified the PCP. It had established a legitimate aim, i.e. the need to provide care to patients in the community, 24 hours a day, 7 days a week, and to balance workload among the team and reduce the cost of having to use higher band registered nurses on a weekend. On the question of proportionality, the tribunal noted that although D was determined to retain her set days for life, she could in fact meet the requirement to work flexibly, including during some weekends, albeit with difficulty. The difficulty or inconvenience D might have in complying with the PCP was a disadvantage which reflected her status as a working mother, but this had to be balanced against the employer's legitimate business needs, and the tribunal was satisfied the employer's actions were proportionate. D appealed again, contending that the Tribunal had erred in its assessment of the proportionality of the PCP by focusing too much on the disadvantage to Dee rather than to the affected group more widely and had placed too much weight on Dee's responses during the consultation process prior to her termination. The Employment Appeal Tribunal dismissed D's second appeal and held that the Tribunal had not erred. It was relevant to consider the disadvantage to Dee in her responses. Provided the tribunal has regard to group disadvantage, its analysis will not be undermined by considering the impact on the individual. Further, while D was not under any legal requirement to propose alternatives to the PCP on the issue of justification, the tribunal was entitled to assess whether any less discriminatory alternatives or compromise were suggested or contemplated. Look out for further episodes in this series to stay up to date on all things HR and employment law related.