In Dobson v Cumbria Partnership NHS Foundation Trust , the employment tribunal held that the requirement by an NHS employer for community nurses to work flexibly, including working at weekends (the “PCP”), was a proportionate means of achieving a legitimate aim and the dismissal of the Claimant for failure to agree to this was fair on the grounds of SOSR (some other substantial reason).
Ms Dobson raised a claim for unfair dismissal and indirect sex discrimination. The claims were initially dismissed by the employment tribunal however upon appeal the Employment Appeal Tribunal remitted the case for a rehearing on the question of proportionality.
Section 19 of the Equality Act provides:
‘A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.’
A PCP is discriminatory where it cannot be justified as a proportionate means of meeting a legitimate aim.
The PCP in this case of requiring weekend working put women at a disadvantage compared to men (having regard to the childcare disparity) and put the Claimant, Ms Dobson, at that disadvantage.
Ms Dobson was employed by the NHS Trust as a community nurse. She worked 15 hours a week on Tuesdays and Wednesdays. As a parent of two disabled children, Ms Dobson and her husband had specific caring responsibilities and arrangements.
In 2016, the NHS Trust reviewed its flexible working arrangements. Flexible working was requested with the aim to reduce costs of having senior nurses work weekends, ensure senior members were available during the week, improve patient care and allow for more complex community care.
Ms Dobson was requested to work flexibly. The NHS Trust adjusted the request for Ms Dobson offering several weeks advance notice where she was required to work a different day or occasional weekend. However, Ms Dobson advised she could not comply. She was the only community nurse unable to comply with the PCP.
As a result of her inability to comply, Ms Dobson’s contract was later terminated and new terms were offered.
The tribunal held the aim to provide care to patients 24/7, balance workload amongst the teams and reduce costs was a legitimate one. Despite slight changes to the flexibility requested the Tribunal considered the request was rationally connected to the legitimate aim. The changes were a result of attempts to try and accommodate Ms Dobsons caring responsibilities. There were no less intrusive alternative measure available, the only other option was accepting full non-compliance by the Claimant. The tribunal took note of the fact Ms Dobson herself offered no alternative arrangement and the Trust had made genuine attempts to find a workable solution.
Additionally, the Tribunal considered a fair balance had been struck between the rights of Ms Dobson and the interests of the NHS Trust. Ms Dobson’s child care options were an important factor when assessing the fair balance. Ms Dobson had access to some help with childcare and whilst she was still at a disadvantage, this potential help placed her at a lower disadvantage.
The tribunal concluded that the PCP was proportionate means of achieving a legitimate aim and therefore justified and so the claim of indirect sex discrimination failed. The dismissal of Ms Dobson for failure to comply was also held to be fair taking into account: the cogent business case for the change, level of consultation with Ms Dobson and compromise proposals put forward by the NHS Trust to seek to avoid dismissal and the offer of re-engagement becoming necessary.
What does this mean for employers?
This decision emphasises the importance of carefully considering different employee needs and responsibilities when implementing changes in the workplace. It also highlights the importance of fully considering alternative options which may be less intrusive for the employee in question. The Claimant in discussions with the NHS Trust had not identified any less intrusive arrangement aside from maintaining the status quo and was not prepared to work any weekends.
The burden of establishing a justification defence falls on the employer and it is not a range of reasonable responses type test but rather is assessed objectively by the Tribunal and is a careful balancing act. In light of recent legislation such as The Employment Relations (Flexible Working) Act 2023 and the Workers (Predictable Terms and Conditions) Act 2023 we can expect these types of cases to become increasingly frequent.
This article was co-written by Erin Thomson, Trainee Solicitor.