NHS Trust's Flexible Working Policy Upheld in Sex Discrimination Appeal
An NHS Trust's flexible working policy has been upheld by the Employment Appeal Tribunal, dismissing a nurse's sex discrimination claims.
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NHS Trust's Flexible Working Policy Upheld in Sex Discrimination Appeal
The Employment Appeal Tribunal (EAT) has dismissed an appeal brought by Mrs Gemma Dobson against North Cumbria Integrated Care NHS Foundation Trust. Mrs Dobson had claimed indirect sex discrimination and unfair dismissal related to the Trust’s introduction of a flexible working policy in 2016. The policy required community nurses to work flexibly, including at weekends, a requirement Mrs Dobson, who had caring responsibilities for her disabled children, could not meet. Her employment was subsequently terminated.
The Employment Tribunal had previously found that while the policy did place Mrs Dobson at a disadvantage, the Trust had successfully demonstrated that the policy was a proportionate means of achieving a legitimate aim. This aim included ensuring 24/7 patient care and balancing workloads amongst the nursing team.
On appeal to the EAT, it was argued that the Employment Tribunal had erred by focusing too heavily on the disadvantage to Mrs Dobson personally, rather than the wider group of affected employees. It was also contended that the Tribunal had placed undue weight on Mrs Dobson's responses during consultations and her failure to propose alternative solutions.
However, the EAT found no error of law. Mr Justice Choudhury stated that it was not irrelevant to consider the disadvantage experienced by Mrs Dobson, and that the Tribunal was entitled to consider her responses and the lack of alternative suggestions put forward by her. The Tribunal's assessment of proportionality, which involved weighing the Trust's needs against the discriminatory effects of the policy, was deemed reasonable.
The EAT noted that while group disadvantage was acknowledged due to childcare responsibilities disproportionately affecting women, the evidence showed that Mrs Dobson was the only community nurse unable to comply with the new working arrangements. The Tribunal's finding that the policy was justified was based on a careful evaluation of the evidence, including the Trust's business case for the changes and the operational needs of the service. The appeal was accordingly dismissed.
Read the entire judgment here: Mrs Gemma Dobson v North Cumbria Integrated Care NHS Foundation Trust EAT 32
