Landmark ruling on working weekends. What does this mean for me?

On 22 June 2021, the Employment Appeal Tribunal granted a landmark ruling establishing that employers should take into account ‘childcare disparity’ (greater burden or childcare responsibility) that women usually have. 

Read on to find out how this could affect your employees or you as an employee.

Why was this ruling granted? 

Community nurse Gemma Dobson was dismissed because she was unable to work weekends due to childcare commitments. 

Gemma brought a claim for unfair dismissal and indirect sex discrimination at the Employment Tribunal. Her claim was unsuccessful at first however, she appealed to the Employment Appeal Tribunal.

The Employment Appeal Tribunal ruled that the Employment Tribunal failed to look into the wider reasons that worked in favour of Gemma.

The Tribunal found that women bear a greater burden of childcare than men which can limit their ability to work certain hours (eg nights or weekends). This was termed ‘childcare disparity’ and advised that it should be something that Tribunals take into consideration when relevant.

The Appeal Tribunal also clarified the law on comparing pools of workers in cases like this. The employer should consider all employees to which the flexible working applies (ie all community nurses), rather than just considering the team Gemma worked in (which Gemma’s employer had done).

Along with reasons for the appeal, this ruling sets out principles that will be fundamental to the patterns of working mums and their employment rights.

What does this mean for businesses that want to change working patterns?

In light of the pandemic and with increased focus on balancing child care duties and work, this case is particularly important for employers seeking to bring flexibility in the workplace. 

Businesses should:

  1. Consider the negative impact on employees when introducing new policies and practices as this could negatively impact employees in the workplace.
  2. Weigh up the risks of bringing in such measures to mitigate a claim of indirect discrimination being brought against them. 
  3. Identify any disadvantage caused by child care disparity when introducing a requirement to work evenings or weekends or amending working patterns (such as hours and days). 
  4. Be prepared to take further action such as discussing why measures have been introduced and take the time to understand employees’ questions and factor in their needs. 
  5. Consider making Flexible working policy to explain to staff and managers the statutory flexible working regime whilst bearing in mind their equal opportunities requirements.
  6. Consider creating an Equal opportunities policy to show commitment to equal opportunities and tackling discrimination within a workplace.

For more information you Ask a lawyer and if you need a bespoke policy, use our bespoke legal drafting service. 

How do you know that you are being indirectly discriminated against?

Indirect discrimination is when a policy, practice or rule applies to everyone but places you at a disadvantage because of your protected characteristic. In Gemma’s case, her protected characteristic was her sex; with her being indirectly discriminated against because of her childcare responsibilities as a woman which put her at a disadvantage compared to other colleagues. 

Protected characteristics are listed in the Equality Act 2010 which cover:

  • age
  • disability
  • gender reassignment
  • marriage or civil partnership
  • pregnancy and maternity
  • race, 
  • religion or belief 
  • sex and sexual orientation. 

For the indirect discrimination provisions to apply, the protected characteristic relied on must belong and affect you personally, and not somebody else.

What is unfair dismissal? 

Unfair dismissal is when you have been let go in an unlawful way. Usually, employers terminate contracts for a variety of reasons such as an employee unreasonably refusing to accept changes to their terms of employment or down to misconduct conduct at work, for example, theft.

Who qualifies for the right to bring a claim under unfair dismissal?

In order to qualify and bring a claim under unfair dismissal, you would have worked for an employer for more than 2 years continuously and bring a complaint to the Employment Tribunal within 3 months minus one day from the date of termination of your employment (ie the date they were dismissed).