Sex Discrimination; Flexible Working
The Claimant was employed as a community nurse. She worked fixed days per week. Following a review in 2016, the Respondent Trust sought to introduce more flexible working. In particular, it introduced a requirement that community nurses work flexibly, including working at weekends. The Claimant was unable to comply because of her caring responsibilities for her three children, two of whom are disabled. She was dismissed. Her claims of unfair dismissal and indirect discrimination were dismissed by the Tribunal. She appeals against that decision.
Held (allowing the appeal) that the Tribunal had erred in limiting the pool for comparison to the team in which the Claimant worked. The provision, criterion or practice (PCP) in this case was the requirement to work flexibly, including at weekends. That PCP was applied to all community nurses across the Trust. Logic therefore dictated that the appropriate pool for comparison was all community nurses. The Tribunal had also erred in rejecting the claim that there was group disadvantage on the basis that there was no evidence of the same. The Tribunal erred in not taking judicial notice of the fact that women, because of their childcare responsibilities, were less likely to be able to accommodate certain working patterns than men. These conclusions meant that, in the circumstances of this case, the findings on justification and unfair dismissal could not stand and would have to be revisited.
Choudhury J P
[2021] UKEAT 0220 – 19 – 2206
Bailii
England and Wales
Updated: 07 July 2021; Ref: scu.663588 br>