Employment News: sex discrimination, trade unions

Hogan Lovells

Hogan Lovells

Who knew? Women less likely to be able to accommodate certain working patterns

An employee will succeed with an indirect sex discrimination claim if she can show that her employer applied a provision, criterion or practice (PCP) that put women (including the employee) at a disadvantage when compared with men and which the employer cannot justify. 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.

Spring in the step - Deliveroo riders not workers for trade union recognition

Independent trade unions are entitled to apply for compulsory recognition on behalf of workers in a bargaining unit if certain conditions are met. The Independent Workers Union of Great Britain (IWUGB) applied for recognition on behalf of various Deliveroo riders working in Camden and Kentish Town but its application failed because the riders were not workers within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992. A genuine right of substitution in their agreements with Deliveroo meant they were not obliged to provide personal service, which was a pre-requisite for worker status. The IWUGB unsuccessfully argued before the High Court that under the European Convention on Human Rights (ECHR) it had a right to bargain on behalf of the riders and subsequently appealed to the Court of Appeal.

The issue for the Court of Appeal was whether Deliveroo riders were in an employment relationship for the purposes of the right to freedom of association under Article 11 of the ECHR. That had to be decided by reference to the International Labour Organization Recommendation on Employment Relationship (R198), not purely domestic principles. However, personal service was also an important feature of an employment relationship under ILO R198 and the CAC was entitled to treat the absence of personal service as decisive. In the absence of a decision of the European Court on Human Rights to the contrary, there was no reason to think that the approach of the CAC and domestic courts to the issue of personal service was incompatible with Article 11 and the IWUGB’s application failed.

Going, going, gone - final edition of the newsletter

This is the final edition of Employment News. Hogan Lovells is changing how we deliver our Employment content and from 12 July we will be moving to our new technology platform, Hogan Lovells Engage.

You’ll soon receive an email with details on how to join us on Engage to continue to stay up-to-date with the latest developments. We look forward to seeing you there, but for now, goodbye.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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