Two recent cases have highlighted the importance of employers (and employment tribunals) to consider “childcare disparity,” namely that women are less likely than men to accommodate flexible working patterns because of childcare responsibilities.
By definition, a provision, criterion, or practice (PCP) is a rule that puts specific individuals at a disadvantage when applied to all. If the individual can prove this, they may be able to claim indirect discrimination.
Under section 19 of the Equality Act 2010, indirect sex discrimination arises in relation to a female employee where:
- the employer applies to her a PCP that it applies, or would apply, to men;
- the PCP puts, or would put, women at a particular disadvantage when compared with men;
- the PCP puts, or would put, the female employee at that disadvantage; and
- the employer cannot show the PCP to be a proportionate means of achieving a legitimate aim.
The first case, Hughes v Progressive Support Limited, related to a support worker who worked for the respondent company under a contract that provided her with a guaranteed minimum of set or “considerate” hours, which would be in line with her childcare responsibilities. For a period, however, her employer offered her hours in line with its service needs and not necessarily in line with what had been agreed. Although no penalty was imposed for her failure to work the hours offered, the claimant could not work her usual number of hours because of her childcare responsibilities and therefore suffered the loss of pay associated with the hours she could not work. In addition, her employer threatened her with moving her on to a zero hours contract.
In the second case, Dobson v North Cumbria Integrated Care NHS Foundation Trust, the claimant was a community nurse who worked fixed days for the Trust. Following a review in 2016, the Trust introduced flexible working, which included requiring community nurses, including the claimant, to work flexibly, including at the weekend. The claimant was unable to comply with this requirement due to her childcare responsibilities looking after three children, two of whom were disabled. The claimant was dismissed.
In both cases, the claimants argued that they had suffered indirect sex discrimination on the basis that the employer had applied a “provision, criterion or practice” that would put women at a particular disadvantage when compared to men and, specifically, had put them at that specific disadvantage. In both cases, the employment tribunal found against the claimants on that point.
On appeal, the Employment Appeal Tribunal (EAT) in the Hughes case said that the PCP was the imposition of hours determined by the employer to get full contractual hours. In other words, the only way that the claimant could get her full contractual hours was to do the hours imposed by the employer. In contrast, previously, the claimant could get her full contractual hours by working “considerate” hours as agreed with the employer in line with her childcare responsibilities. The employment tribunal had failed to consider the requirement at the time the respondent was imposing the hours and also failed to consider the financial impact of losing the hours. Accordingly, the EAT remitted the matter to a different tribunal to consider whether, firstly, the PCP gave rise to a particular disadvantage to female employees and whether, if it did, there was objective justification for that particular disadvantage.
The EAT went further in the Dobson case, holding that the employment tribunal had failed to take judicial notice that women are less likely than men to accommodate flexible working patterns because of childcare responsibilities. It referred to the “childcare disparity,” namely that it is a fact that women bear a greater burden of childcare than men and that this can limit their ability to work certain hours. It was noted that, although the childcare disparity is not a matter directed by statute to be taken into account, it has been noticed by courts at all levels for many years.
The EAT further cautioned that norms could change over time. While things may have progressed somewhat, with men bearing more childcare responsibilities than previously, the position is still far from equal. In all the circumstances, the claimant should not have had to prove group disadvantage regarding compliance with flexible working arrangements. Further, the tribunal should not have needed to have been asked to take judicial notice of the childcare disparity; it erred by not taking such judicial notice.
These cases highlight the importance of employers considering not just the obvious consequences of changes in practice or policy but also the unintended consequences of any such changes; the Equality Act is there to protect individuals not just against direct forms of discrimination but also discrimination that occurs indirectly. Careful consideration, therefore, needs to be taken, as in these cases, when deciding to make wholesale changes to the hours employees are expected to work.
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