‘Childcare disparity’ recognised by the Employment Appeal Tribunal

The Employment Appeal Tribunal, in allowing an appeal in Mrs G Dobson v 1) North Cumbria Integrated Care NHS Foundation Trust 2) Working Families – Intervenor, has held that the ‘childcare disparity’ existing between men and women should be taken into account in employment cases.

The facts

Gemma Dobson was a nurse, working for an NHS Foundation Trust, with childcare responsibilities for three children, two of whom are disabled. She worked under a flexible working arrangement where she worked 15 hours over two fixed weekdays. The NHS Trust introduced new flexible working arrangements which would require Dobson to work ‘the occasional weekend’. After a review of Dobson’s working arrangements, where she explained that she was unable to amend her working hours because of her childcare responsibilities, Dobson was dismissed.

Dobson then raised a claim for unfair dismissal and indirect sex discrimination before the Employment Tribunal but was unsuccessful – the tribunal considered that ‘being female with caring responsibilities’ was not a protected characteristic.

The Appeal

Dobson appealed, arguing, amongst other things, that the Employment Tribunal should have taken her additional caring responsibilities into account.

In explaining that the original tribunal judge had erred in failing to give due account to Dobson’s childcare responsibilities, Justice Choudhury recognised the disparity that still exists between men and women:

‘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, that does not apply to the childcare disparity’

‘The childcare disparity means that women are more likely to find it difficult to work certain hours (e.g. nights) or changeable hours (where the changes are dictated by the employer) than men because of childcare responsibilities’

Justice Choudhury concluded that:

In a claim of indirect discrimination, an assertion that a particular PCP puts women at a disadvantage because of their childcare responsibilities as compared to men would be sufficient, in our view, to identify a matter in respect of which judicial notice could be taken.

Why is this important?

Women, as recognised by Justice Choudhury, often bear the brunt of childcare responsibilities in the UK. This is due in part to the expensive cost of childcare which, despite being partially subsidised by the government, is often considered unaffordable. This has only been exacerbated by the pandemic, with women now devoting increased hours to childcare. A survey by Pregnant Then Screwed revealed that 46% of mothers believed they had been made redundant in part due to a lack of childcare provision during the Covid-19 pandemic.

The Employment Appeal Tribunal decision could pave the way in ensuring that important protections are available for working mothers and could prevent them from being indirectly discriminated against because of childcare responsibilities and the ‘childcare disparity’ still existing in the present day.

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