Flexible working, childcare and indirect sex discrimination – important reminder
The courts have long recognised that, on a societal level, women bear a greater burden of childcare responsibilities than men which can make it more difficult for women to comply with employer requirements for flexible working (known as the ‘childcare disparity’).
The courts have long recognised that, on a societal level, women bear a greater burden of childcare responsibilities than men which can make it more difficult for women to comply with employer requirements for flexible working (known as the ‘childcare disparity’). This recognition has historically assisted women who make claims for indirect sex discrimination on the basis of a requirement to work flexibly applied to both men and women which has a particular disadvantageous effect on women due to the childcare disparity.
The Employment Appeal Tribunal confirmed last week in Dobson v North Cumbria Integrated Care NHS Foundation Trust that the childcare disparity still persists in 2021 despite advances being made to address the inequality in recent years. It does not necessarily follow that in all cases where the childcare disparity applies, there will be a group disadvantage. It also does not necessarily follow that if in a particular case a woman can establish that a requirement to work flexibly puts her to a disadvantage due to childcare responsibilities, the employment tribunal should assume that it also puts women as a group to a disadvantage due to the childcare disparity. However, in some cases, such an inference may be appropriate, requiring the employer to objectively justify the flexible working requirement to avoid a finding of indirect sex discrimination.
Although the Employment Appeal Tribunal recognised that this assumption may become inappropriate in the future as further progress is made on sharing the childcare burden more equally, it noted that the position is still far from equal.
Whilst this case represents a re-statement of the current law and is perhaps not as landmark as reported in the media, it is an important reminder to employers that care must be taken in reaching decisions on working patterns in relation to employees with childcare responsibilities. Employers should take care to ensure that any decisions that could put a working parent to a disadvantage go no further than is necessary, are justified and are properly recorded. If employers are in any doubt, they should seek professional advice.
Related expertise
You may be interested in...
Opinion
The NHS pay deal – are all Agenda for Change staff eligible?
Online Event
Shared Insights: Data and Information Governance Issues
Online Event
'Getting ready to reform – preparing for the new Procurement Bill' webinar
Opinion
Further three-day junior doctors strike announced for June
In Person Event
Health and Care Connect: East Midlands Care Breakfast with Virgin Money
Legal Update
Utilising prime retail sites to improve the health of our nation
Legal Update
Retirement housing: A solution to our care and housing crises?
Opinion
Non-compete clauses - proposed changes to employment contracts
Press Release
Browne Jacobson welcomes new Manchester employment partner Lee Ashwood
Online Event
Mock Inquest Training Sessions
Legal Update
The Retained EU Law Bill – sunsetting the sunset
Legal Update
“Smarter Regulation” – proposed employment changes ahead
Opinion
New bill reaches tipping point: bill on allocation of tips at final stages
Press Release
Law firm launches new Health and Care Connect forum for the independent health and care sector
Legal Update - Shared Insights
Shared Insights: Compassionate Leadership and Culture
Legal Update
Checklist for Heads of Legal: How to prepare for the Patient Safety Incident Response Framework (PSIRF)
Opinion
Pay deal reached for Agenda for Change employees
Online Event
Shared Insights
Published Article
Third Party Harassment – haven’t we been here before?
Opinion
Injunction means nurses’ strike will be cut short
Published Article
Supporting employees with mental health issues
Legal Update - Shared Insights
Shared Insights: PSIRF and what it means for Independent Providers
Opinion
New Acas guidance on mental health reasonable adjustments
Opinion - Maternity services
Racial disparities in maternity care
Legal Update
Industrial action update: school strikes
Opinion
Further industrial action announced as RCN reject pay deal
Legal Update
Government to expand network and Information systems regulations
Opinion
Confirmation of ACAS early conciliation in the context of multiple claim forms
Published Article
Managing flexible working requests – how to stay on the right side of the law
Legal Update
A pandemic legacy: flexibility
Opinion
NHS pay deal – is this the end of the dispute?
Opinion
Gender pay gap reporting – what are my obligations?
Legal Update
Automatic suspension and procurement law
Opinion
Employment claims: the new rates and limits from 6 April 2023
Opinion
Plans to amend NHS pension rules to bolster NHS workforce approved by government
Opinion
Increase to 20 hour limit on supplementary employment for Health and Care Worker visa holders
Legal Update
Supreme Court will hear Worcestershire case on local authority responsibility for Section 117 Aftercare in April 2023
Legal Update - Shared Insights
Implementing learning from claims to help improve patient safety - Focus on Diabetes and Lower Limb Complications
Article
New report highlights risk of sidelining ED&I in school trusts
