Flexible working – the debate continues

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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.

To discuss this or any other related matter with Jane Crosby directly, please call us, email info@hartbrown.co.uk or start a live chat today.

*This is not legal advice; it is intended to provide information of general interest about current legal issues.


Jane Crosby

Partner, Head of Dispute Resolution & Accredited Mediator

Jane is a Partner based in the Guildford office and she is also Head of the Dispute Resolution team here at Hart Brown. Jane specialises...

Jane Crosby -Head of Dispute Resolution

Partner, Head of Dispute Resolution & Accredited Mediator

Jane Crosby

Jane is a Partner based in the Guildford office and she is also Head of the Dispute Resolution team here at Hart Brown. Jane specialises in employment Law and commercial litigation and brings more than 15 years' experience to her role.

Prior to entering the legal profession, Jane was employed in the aviation industry. This experience is appreciated by many of Jane's clients who note that she is able to take a commercial and pragmatic approach to any legal issue that they face.

Jane acts for a wide range of individuals and businesses and her areas of specialism include aviation, property related industries and IT. Jane regularly advises on aspects of employment law, such as settlement agreements, employment contracts, policies and procedures, redundancies, equal pay, data protection, issues arising from TUPE and reorganisations, the calculation of holiday pay, bonus and commission payments, disciplinary and grievance issues, dismissal and termination issues, the protection of confidential information and the enforcement of restrictive covenants. Jane gets involved in GDPR training for her clients and she is able to deliver tailored employment law training sessions upon request.

As a commercial litigation lawyer, Jane also deals in shareholder and directors disputes, commercial contract disputes and the enforcement of restrictive covenants.

Jane has been involved in successful high value commercial litigation for clients in the High Courts, she is an accredited mediator and she is a member of the Employment Lawyers Association.

Jane is often asked to write for a number of well known publications, including The Daily Mail, The Telegraph and The Week and she has been interviewed on BBC Radio 4.

Here is small selection of the feedback that Jane has received:

“Jane, I cannot sincerely thank you enough for your wise counsel and am delighted to have made your acquaintance. If I am blessed with a new position somewhere I will hand over my contract in the first instance to you. Likewise, any of my friends, peers, romans and countrymen wanting advice, I will point them in your direction.”

“Jane, you have been most resilient on my behalf for which I sincerely thank you for all your endeavours. I have a tremendous working relationship with Hart Brown and you have undoubtedly compounded this further."

“I appreciated the clarity of advice given at a stressful time”.

“A sensitive and highly professional approach and efficient work in the interests of the client”.

“Your advice, conduct and assistance have been indeed outstanding and very professional but also – and most importantly – very humane”.