Dobson v. North Cumbria Integrated Care NHS Foundation Trust
The Employment Appeals Tribunal found the Carlisle Employment Tribunal erred in failing to give judicial notice on the issue of childcare disparity in a case determining whether an employer’s provision, criterion or practice (“PCP”) indirectly discriminated against a group of employees. The claimant, as part of their indirect discrimination case, is required to demonstrate a group disadvantage related to the PCP adopted by their employer. Judicial notice recognizing the childcare disparity would have established the required group disadvantage that the claimant must demonstrate as part of her claim. The childcare disparity recognizes that women bear a greater burden of childcare responsibilities, and as such may find it difficult to work certain hours.
Mrs. Dobson was a community nurse employed by North Cumbria Integrated Care working two days a week. As a mother of three children, two of whom have disabilities, Mrs. Dobson relied on the ability to have a fixed work schedule. From 2008 to 2016 Mrs. Dobson maintained a 15-hour work week over a period of two fixed days without issue. In 2013 Mrs. Dobson’s employer first asked Mrs. Dobson to work the occasional weekend, but after explaining her family dynamic and work that she needed to complete at home the issue was dropped. In 2016, the company issued policy in which all “flexible” working arrangements would be reviewed. During the review of Mrs. Dobson’s work schedule, she was informed that she would be required to work the occasional weekend no more than once a month and with ample notice. When Mrs. Dobson was unable to meet these new schedule requirements, her employment was terminated.
Mrs. Dobson, claimant, brought an indirect discrimination claim against her former employer on the basis of sex. (In the terminology of European lawyers, direct discrimination refers to what can be viewed as “intentional discrimination,” and indirect discrimination refers to conduct or policies that produces a discriminatory effect or impact). In determining whether there was a disadvantage as a result of a provision, criterion or practice (PCP) adopted by respondent, the Carlisle Employment Tribunal (Carisle Tribunal) held that the PCP was the requirement that its community nurses work flexibly, including weekends. Per Section 19 of the 2010 Equality Act, in determining whether discrimination occurred, the court must determine whether it puts, or would put, persons with a shared relevant protected characteristic at a disadvantage compared to those who do not share that characteristic. The Employment Appeals Tribunal (Appeals Tribunal) held that the Carlisle Tribunal erred because they considered group disadvantage by reference to the wrong pool. They only compared Mrs. Dobson to those within the small team she worked, rather than all community nurses across the Trust to which the PCP applied.
Next, the Appeals Tribunal turned to the Carisle Tribunal’s finding that the claimant was required to present evidence showing that women as a group would be disadvantaged by the PCP. The Appeals Tribunal held that judicial notice applies in this case. Where judicial notice applies, “[t]he Court must take judicial notice of matter directed by statute and matters that have been ‘so noticed by the well-established practice or precedents of the courts.’” The Appeals Tribunal found that the childcare disparity, described as the fact that women have a greater burden of childcare responsibilities which may limit their ability to work certain hours, is a matter of fact that courts have recognized for many years and which courts must take into consideration if relevant.
Where the context, nature of the claim, and nature of the tribunal give notice that the allegation being made requires judicial notice, an official pleading of judicial notice is not required. In a claim of indirect discrimination, an assertion that a particular PCP puts women at a disadvantage because of their childcare responsibilities as compared to men, would be sufficient to identify a matter in respect of which judicial notice could be taken.
Here, the childcare disparity was implicit in the case and judicial notice should have been given. This recognition is not prima facie evidence of discrimination as a result of the PCP; however, the factors introduced by the childcare disparity are relevant to determining whether the PCP indirectly discriminates against female employees as a group.
The Appeals Tribunal also found that the Carisle Tribunal’s error in respect to the choice of pool meant its conclusion on justification could not be treated as safe. Further, because the facts of the case inextricably linked the reason for dismissal to the PCP, the Carisle Tribunal’s conclusion on unfair dismissal could not stand.
The case was remanded to the Tribunal to reconsider the issues of whether the Respondent can show the PCP to be a proportionate means of achieving a legitimate aim and unfair dismissal.
Intervenor: Working Families - a non-profit helping parents and carers find balance between responsibilities at home and in the workplace.
This case provides judicial recognition to a reality that many working women with families face a greater burden of childcare responsibilities at home. The court held that the “childcare burden” must be given judicial notice if relevant. This notice lessens the burden on women with indirect discrimination claims related to family and work schedules, as matters of judicial notice do not require additional evidence for the court to consider the claim.
For their contributions, special thanks to ESCR-Net members: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.