An employment tribunal must take judicial notice of the fact that women are less likely than men to be able to accommodate flexible working patterns because of childcare responsibilities. The fact that women bear the greater burden of childcare than men and that this can limit their ability to work certain hours.
Background to Appeal
D was employed as a community nurse working fixed days. Following a review in 2016, the Trust sought to introduce more flexible working. In particular, it introduced a requirement that community nurses work flexibly, including working at weekends. D was unable to comply because of her caring responsibilities for her three children, two of whom are disabled. She was dismissed. She claimed unfair dismissal and indirect sex discrimination, among other things. Under S.19 of the Equality Act 2010, indirect sex discrimination arises in relation to a female employee where (a) the employer applies to her a provision, criterion or practice (PCP) that it applies, or would apply, to men; (b) the PCP puts, or would put, women at a particular disadvantage when compared with men; (c) the PCP puts, or would put, the female employee at that disadvantage; and (d) the employer cannot show the PCP to be a proportionate means of achieving a legitimate aim.
An employment tribunal dismissed all of D’s claims. The tribunal accepted that the Trust applied a PCP, namely requiring that its community nurses work flexibly, including at weekends, and that that PCP applied to men and women in D’s team. However, it went on to find that it had been shown no evidence that the PCP put women at a particular disadvantage compared to men. It noted that, on the contrary, all of D’s female colleagues were able to meet the requirement, as was the only man in the team. Thus, although the tribunal accepted that D personally was placed at a disadvantage, it concluded that the claim had to fail for lack of group disadvantage. The tribunal went on to note that, if it had had to consider objective justification, it would have found that the Trust was pursuing the legitimate aim of achieving flexible working by all community nurses in order to provide a safe and efficient service, and that it was proportionate to do so by applying the PCP to all members of the nursing team. D appealed to the EAT.
Appeal
The EAT allowed the appeal. It accepted D’s argument that the tribunal had erred in confining the pool for comparison, for the purpose of testing group disadvantage, to the nurses in D’s team. The tribunal had found that the Trust applied the PCP to all community nurses and so, logically, the pool for comparison had to include all of the community nurses who were required to work flexibly. A pool comprising only members of D’s team would not be appropriate because the PCP was not so confined.
With regard to the lack of evidence of group disadvantage, the EAT accepted D’s argument that the tribunal had erred in failing to take judicial notice of the fact that more women than men tend to have childcare responsibilities and so are more likely to be unable to comply with flexible working requirements. D identified a number of examples in the case law where judicial notice had been taken of the fact that women are more likely to be child carers than men. The EAT concluded that two points emerged from these authorities: first, the fact that women bear the greater burden of childcare responsibilities than men and that this can limit their ability to work certain hours is a matter in respect of which judicial notice has been taken without further inquiry on several occasions (‘the childcare disparity’); and secondly, while the childcare disparity is not a matter directed by statute to be taken into account, it is one that has been noticed by courts at all levels for many years. The EAT cautioned that the matter is not set in stone: many societal norms and expectations change over time, and what may have been apt for judicial notice some years ago may not be so now. However, in its view, this did not apply to the childcare disparity. While things might have progressed somewhat, in that men do now bear a greater proportion of child caring responsibilities than they did decades ago, the position is still far from equal. The EAT therefore accepted that the assumptions made and relied upon in the authorities cited were still very much supported by the evidence presented to it of current disparities between men and women in relation to the burden of childcare.
As for the present case, the EAT held that, although the tribunal was not specifically asked to take judicial notice of the childcare disparity, it should have done so. The childcare disparity is so well known in the context of indirect discrimination claims and so often the subject of judicial notice in other cases that it was incumbent on the tribunal, in the circumstances, to take notice of it here. The tribunal therefore erred in not taking account of it and in treating D’s case as unsupported by evidence. The EAT went on to note that taking judicial notice of the childcare disparity does not necessarily mean that group disadvantage is made out. Whether or not it is will depend on the interrelationship between the general position that is the result of the childcare disparity and the particular PCP in question. However, on the present facts, where the PCP was to work flexibly, including at weekends, and the nurses did not have any flexibility to choose working hours or days within certain parameters, this was one of those cases where the relationship between the childcare disparity and the PCP was likely to result in group disadvantage being made out.
The EAT went on to uphold D’s appeal against the tribunal’s conclusion on objective justification and against the rejection of her unfair dismissal claim. It accordingly remitted the claims to be reheard.