Nurse who was sacked for refusing to work weekends wins Employment Tribunal Appeal
Case Study: Nurse who was sacked for refusing to work weekends wins Employment Tribunal Appeal
Employment Appeal Tribunal: Background
Gemma Dobson, a Community Nurse at North Cumbria Integrated Care NHS Foundation Trust (Trust), had been working fixed days since the birth in 2008 of her first child, who is disabled. Dobson later went on to have two more children, with her youngest child being diagnosed with autism in 2014.
In 2016, the Trust reviewed its working practices, asking all community nurses to work one weekend a month. Due to childcare responsibilities for her three children, two of whom are disabled, Dobson was unable to accommodate the new weekend working requirements and was subsequently dismissed.
Dobson proceeded to take the Trust to an Employment Tribunal alleging unfair dismissal and indirect sex discrimination however, the Employment Tribunal rejected her claims, noting that her female colleagues, who also had childcare responsibilities, were able to work with the new weekend working requirement and that it did not create a group disadvantage on which Dobson could base her claim.
Working closely with Working Families, a charity that provides free legal advice to parents/carers on their rights at work, Dobson lodged an appeal against the Tribunal’s decision.
Employment Appeal Tribunal: Decision
The Employment Appeal Tribunal (EAT) found that the initial Employment Tribunal had failed to take account of the fact that women, due to childcare responsibilities, are less likely to be able to accommodate certain working patterns than men. The Employment Tribunal should have extended their considerations beyond Ms Dobson’s female colleagues considering, instead, all Community Nurses within the Trust.
The EAT has returned the case to the Employment Tribunal for further consideration as to whether Dobson was, in fact, discriminated against or unfairly dismissed. Updates to the case will be circulated as and when they are decided.
What does this mean in practice?
This decision makes it clear that the courts will take into account the childcare disparity that exists between men and women when deciding cases of this nature. This means employers should do so also, particularly when considering ‘hybrid’ or ‘flexible’ working arrangements post-Covid-19.
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