Dobson v North Cumbria Integrated Care NHS Foundation Trust (Sex Discrimination; Flexible working) [2021] UKEAT 0220/19/2206

Appeal against the dismissal of a claim of unfair dismissal and indirect discrimination. Appeal allowed.

The Claimant was employed by the Respondent as a community nurse. She has three children, two of whom are disabled. Due to her childcare responsibilities, the Claimant had, for a number of years, worked only on Wednesdays and Thursdays each week. In 2016, the Respondent required her to work flexibly, including by working one weekend every so often. The Claimant made it clear that she could not accommodate that request and she was dismissed. The Claimant brought claims for unfair dismissal, victimisation, and indirect discrimination. The indirect discrimination claim was based on the protected characteristic of sex. The Claimant's claims were dismissed by the ET and she appealed.

The EAT allowed the appeal. The ET had erred in limiting the pool for comparison to the team in which the Claimant worked. TheĀ  provision, criterion or practice (PCP) in this case was the requirement to work flexibly, including at weekends. That PCP was applied to all community nurses across the Trust. Logic therefore dictated that the appropriate pool for comparison was all community nurses. The ET had also erred in rejecting the claim that there was group disadvantage on the basis that there was no evidence of the same. The ET erred in not taking judicial notice of the fact that women, because of their childcare responsibilities, were less likely to be able to accommodate certain working patterns than men. These conclusions meant that, in the circumstances of this case, the findings on justification and unfair dismissal could not stand and would have to be revisited.

Published: 05/07/2021 17:08

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