Landmark decision helps protect working mothers

An employment tribunal failed to take into account the “childcare disparity” faced by women when it said a nurse was not unfairly dismissed because she was unable to work weekends, the Employment Appeal Tribunal (EAT) has ruled.

This is being seen as a landmark ruling that will help protect the rights of working mothers, recognising the childcare burden as a fact for future discrimination cases.

The ruling comes as a victory for a community nurse who is arguing she was unfairly dismissed and faced indirect sex discrimination from North Cumbria Integrated Care NHS Foundation Trust after it introduced a new flexible working policy that required her to work some weekends. She  had previously worked fixed days because of her childcare responsibilities for three children, including two with disabilities, and was dismissed because she was unable to comply with the new requirements.

An initial employment tribunal had ruled that the dismissal was not unfair, finding that “being a female with caring responsibilities” was not a protected under the Equality Act because, while sex is protected characteristic, her “sex and her caring responsibilities cannot be conflated in this way”.

The initial tribunal also ruled that, as all the other women in the nurse’s team were able to work with the new flexible working requirement – including those with childcare responsibilities – the requirement did not create a group disadvantage that she could have based her claim on.

However, the EAT said this tribunal had erred when it limited the comparison to just the team of nurses she was working with, finding that because the new flexible working policy was rolled out across the trust, the pool of comparison should have included all of the trust’s community nurses.

The EAT also said the tribunal was wrong to rule that the new flexible working policy did not create a group disadvantage because it did not recognise the childcare burden disproportionately faced by women.

Because the nature of the flexible working requirement meant nurses had to work on days required by the trust, and did not mean nurses had the flexibility to choose when they worked, it was an arrangement “that was inherently more likely to produce a detrimental effect, which disproportionately affected women”.

The case will now be reheard at an employment tribunal.