- 29 Jun 2021
- 2 min read
EAT confirms principle that women provide more childcare than men
EAT confirms principle that women continue to provide more childcare than men
In the case of Dobson v North Cumbria Integrated Care NHS Foundation Trust, Mrs Dobson’s employer sought to change her working hours to include weekend work. Due to her childcare responsibilities, she was unable to work on weekends. Her employer would not accept this and ultimately, dismissed her. She claimed unfair dismissal and indirect sex discrimination against her employer.
In relation to indirect sex discrimination, the employee needs to show evidence that because of a practice of their employer (in this case, the requirement to work weekends), women are placed at a greater disadvantage compared with men. Her argument rested on the assumption that women are less able to work weekends than men due to the fact that women have greater childcare responsibilities.
The Employment Appeal Tribunal (EAT) agreed with her and have reconfirmed an old principle that women statistically remain the primary care givers (the so-called “childcare disparity”).
Why is this important?
Due to societal change, people have questioned whether this principle remains in effect in 2021. Well, the EAT in this case has found that the childcare disparity continues to apply.
This is a reminder that employers should consider whether any proposed practice or change to terms could indirectly disadvantage women even if it applies to all employees due to childcare responsibilities. Employers should note that this will also extend to flexible working requests made by female employees who need to work flexibly in order to accommodate their childcare requirements.
What should you do?
- Before implementing new working hours, or responding to a flexible working request, consult with staff to establish how this may impact on female employees with childcare responsibilities.
- There may be circumstances in which the requirements of the business can “objectively justify” a working pattern which would place women at a disadvantage, but you should take legal advice to establish whether this justification could apply.
- Be mindful that this issue doesn’t necessarily just affect women. If a male employee’s flexible working request is denied where a comparable female employee’s request would have been agreed, this could amount to direct sex discrimination.
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