The effect of the pandemic has made businesses think more carefully about the issues surrounding the obligation to work flexibly.
An important ruling in the Employment Appeal Tribunal has recently been decided that employers must take childcare disparity into account when dealing with flexible working issues.
Background to the case
The person who brought the case, Mrs Dobson, was employed by Integrated Care NHS Foundation Trust as a community nurse. She had difficulties at work when her employer tried to introduce a more flexible pattern of work instead of working fixed days.
This meant that Mrs Dobson would have to work the occasional weekend. Mrs Dobson was unable to comply with the new requirements of her employers due to her child care commitments and was, as a result, subsequently dismissed.
She brought claims in the employment tribunal for unfair dismissal and indirect sex discrimination against her employer. Mrs Dobson sought to argue that the change in policy by her employers put her at a particular disadvantage when compared with her male colleagues. She argued that due to her child caring responsibilities she could not comply with the request so the policy had a discriminatory effect.
Employment Appeal Tribunal ruling
Mrs Dobson’s claim for indirect discrimination was rejected by the Tribunal but she appealed to the Employment Appeal Tribunal. She was successful in her claim because the judge said that women continue to bear a greater burden of childcare responsibilities than men, and this can affect their ability to work certain hours.
This recognised difference between men and women was referred to as ‘the childcare disparity’ in the decision. The Employment Appeal Tribunal ruled that the case should be handed back down to the Employment Tribunal to reconsider.
What does this mean for companies
There is an automatic assumption that people will want to work flexibly but employers should take into consideration how that impacts certain groups within the workplace.
Employers should be mindful to communicate their decisions and if the employees reject the proposal there may be other working patterns that may satisfy the needs of both parties. Alternative ways of meeting employees’ objectives should be highlighted and considered.
It is always sensible to take advice before taking such steps to change a working pattern or introduce flexible working because it may not be welcomed by everyone. There is an assumption that working parents want to work more flexibly but this may not always be the case.
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*This is not legal advice; it is intended to provide information of general interest about current legal issues.