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Kerry Eastman

HR Advisor - Uckfield

22nd July 2021

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.

Do you need help with implementing hybrid working arrangements and responding to requests for flexible working? Say no more, the GatekeeperHR team is here to help. GatekeeperHR is a fixed cost, employment law and HR retainer service which provides businesses with access to a dedicated team of experienced lawyers and HR professionals who you can speak to, or meet face-to-face, at any time. The service includes a full HR compliance audit, access to an online portal full of valuable employment law and HR resources and an annual training session on topics of your choosing. To find out more about GatekeeperHR, please contact Amy White, Solicitor and Partner, in Rix & Kay’s Employment Team.

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