In Dodson v North Cumbria Integrated Care NHS Foundation Trust the EAT has once again confirmed that it is a matter of judicial notice that women are less likely to be able to accommodate certain working patterns than men because of childcare responsibilities. The claimant did not need to provide specific evidence that a requirement to work flexibly, including occasional weekends, put women at a disadvantage for the purposes of her indirect sex discrimination claim.

Mrs Dobson worked as a community nurse on two fixed days each week. She was dismissed in 2016 because for childcare reasons she was unable to comply with a change to her working arrangements. The new arrangements required her to work more flexibly, including at weekends. An employment tribunal rejected her unfair dismissal and indirect sex discrimination claims. It found that there was no evidence that the requirement to work flexibly, including at weekends, placed women at a disadvantage in comparison with men. In particular, all the other female employees in Mrs Dobson’s team were able to comply with the flexible working requirement. Her indirect discrimination claim failed.

On appeal, the EAT overturned the tribunal’s decision. The tribunal identified the PCP as a requirement that community nurses should work flexibly, including at weekends. It applied to community nurses generally, not just to those in Mrs Dobson’s team. The proper pool for testing whether the PCP put women at a disadvantage in comparison with men was, as a matter of logic, all community nurses, not just those in Mrs Dobson’s team. By assessing the question of disadvantage purely by reference to the relatively small team in which Mrs Dobson worked, the tribunal had chosen a pool that was not representative.

In addition, Mrs Dobson did not have to provide specific evidence to show that the PCP placed women at a disadvantage in comparison with men. The fact that women bear a greater childcare burden than men and that this limits their ability to work certain hours, which the EAT referred to as the childcare disparity, is a matter of judicial notice. Although societal norms are changing, the position is still far from equal. Mrs Dobson had pleaded that women were more likely to be child carers than men and this should have alerted the tribunal to the need for judicial notice of the childcare disparity. Whether a PCP related to flexible working would put women at a disadvantage would depend on the facts of each case, but a requirement to work on different days depending on the employer’s requirements was one that was likely to result in the necessary group disadvantage. The case was remitted to the tribunal.