Navigating Childcare and Weekend Working – A Fair Dismissal?

A decision made by the Employment Tribunal has been recently reviewed where it was found that an NHS nurse with two disabled children was fairly dismissed. This was because of her refusal to comply with the introduction of flexible working patterns to her role. It has highlighted that a need for flexible working is not always to be applied too strictly and an employer’s needs as a whole must sometimes prevail.

Facts

Mrs Dobson was dismissed by the North Cumbria Integrated Care NHS Foundation Trust (‘the NHS Trust’) in 2017 for her refusal to work a weekend once a month. Mrs Dobson was an NHS nurse with three children, two of whom are disabled. It had been previously approved that she could work on a flexible working pattern due to her caring responsibilities. When the new rostering policy was introduced to include some weekends, Mrs Dobson declined to be reengaged on the new terms and she was subsequently dismissed. Mrs Dobson brought a claim for unfair dismissal and indirect sex discrimination to the Tribunal.

Initially, the Tribunal dismissed her claims and in particular stated that the criterion introduced by the NHS Trust applied to both men and women. It was held that there was no evidence to show that women were at a particular disadvantage to men as other members in her team were able to fulfill the requirement. Mrs Dobson appealed on the basis that consideration had not been given to the greater caring responsibilities of women, and secondly that the pool of comparison should not have been limited solely to Mrs Dobson’s team but should have included all community nurses across the Trust. The appeal was accepted and remitted back to the Tribunal to be reconsidered.

Decision

After fresh consideration of the Tribunal’s decision and applying Mrs Dobson’s reasoning to all community nurses, the Tribunal affirmed its original decision that she had not suffered indirect sex discrimination, despite being put at a disadvantage. This was on the basis that although she was put at a disadvantage, the weekend working pattern was found to be a proportionate means of achieving the legitimate aim of transitioning into a 24/7 service and treating patients with more complex needs at home.

The Tribunal took the time in their judgment to set out their reasoning and carefully evaluate the evidence. Notably, in order to accommodate Mrs Dobson’s refusal, other members of the team would have to compensate for this by working additional weekends. This would include requiring the time of more expensive senior nurses, who would then be unavailable for management issues. Mrs Dobson’s disadvantage was found to be at the lower end of the scale as, on the facts, it was found that some family childcare could be put in place.  In balancing the disadvantage to Mrs Dobson against the reasonable needs of the NHS Trust, practically, the only measure available was to terminate her contract.

It was noted that the NHS Trust had exhausted all alternative options to dismissing Mrs Dobson. In addition, a variety of ways to support her in working more flexibly was explored. However, all suggestions were refused by Mrs Dobson with no alternative solution presented. Therefore, the Tribunal found that the NHS Trust could not have reasonably exempted Mrs Dobson from this requirement, making the decision to dismiss her a reasonable and fair response.

Learning points

The Tribunal has set a clear message on an employer’s role in implementing a legitimate aim proportionately. The importance of an employer’s involvement in an extensive consultation process with the employee, to mitigate any resulting impact, has been emphasised.

This case serves as a reminder to all employers on the significance of handling discussions appropriately, while considering their own resources and economic pressures. It is always key to have comprehensive policies and procedures in place.

How we can help

With so many difficult factors to consider and bespoke procedures to follow, it is important to understand the right process when introducing new contractual terms and policies, especially if this could create disadvantage to a particular group. It is advisable to seek legal advice to help avoid lengthy and costly Employment Tribunal claims.

For further information, or to discuss the issues raised within this case, please contact us to speak to a member of our Employment Team.