Group disadvantage doesn’t always follow from childcare disparity

A recent EAT ruling has reminded tribunals that they can’t necessarily infer that a requirement to work outside normal office hours will disadvantage women. In many cases group disadvantage can readily be inferred by drawing on judicial knowledge of the “child-care disparity”, meaning that the employer will need to establish a justification defence. But in others, a tribunal could conclude that the claimant hasn’t established such a disadvantage, leading to her claim for indirect discrimination falling at the first hurdle. 

The Perkins ruling

In this latest appeal case involving the working hours of female carers, Mrs Perkins was challenging a new requirement to travel significant distances, rather than being based exclusively at a single office location. This was to be applied to her and other managers of the same grade. She was the only women at this level. 

She objected to the travel requirement because it would have involved her leaving early in the morning and getting back late in the evening, outside the hours during which she could readily arrange childcare. Her refusal to accommodate the changes her employer was seeking to introduce ultimately led to her being dismissed on redundancy grounds.

The employment tribunal upheld her claim for indirect discrimination, noting that “women are the primary carers of small children”. However, it was not clear from the tribunal’s reasons why it had decided that the requirement to travel significant distances put women at a particular disadvantage. Its reasons also failed to show that it had considered the impact of the policy generally, rather than focusing exclusively on its impact on the claimant.

As a result, the EAT overturned the tribunal’s original decision, and it is likely that it will be directed it to reconsider its decision.

Previous case law

These may seem rather subtle points, but they illustrate the importance of understanding exactly what previous case law says.  The most relevant ruling is a 2021 EAT decision involving a community nurse, Gemma Dobson. In that case the dispute was about the introduction of a new requirement for her to work “occasional weekends”, in addition to Wednesdays and Thursdays every week. She refused to countenance any change to her working schedule because of the difficulties she faced arranging suitable childcare at weekends.

The employment tribunal had dismissed her indirect discrimination claim because it did not accept that the new working pattern would put women at a particular disadvantage. The EAT disagreed, pointing out that it should have recognised that because of what it called the “childcare disparity”, these new arrangements would put women at such a disadvantage. The tribunal should therefore have called on the employers to justify the new arrangements as a proportionate means of achieving a legitimate aim.

Mrs Dobson’s case was remitted to the same tribunal to assess whether the employers could objectively justify the new working arrangements. In a decision published in 2023, the employment tribunal upheld the employer’s justification defence and dismissed her claim for the second time. This was because her employers had been able to point to a pressing need to ensure an adequate service over weekends and were able to show that they had done their best to understand and accommodate Mrs Dobson’s needs.

In the context of the Perkins decision, it is worth noting an important qualification to the general rule that a requirement to work antisocial or irregular hours (ie a “PCP”) will generally put women at a particular disadvantage (ie a “group disadvantage”). The EAT in the Dobson case said:

“However, taking judicial notice of the childcare disparity does not necessarily mean that the group disadvantage is made out. Whether or not it is will depend on the interrelationship between the general position that is the result of the childcare disparity and the particular PCP in question.”

The EAT added that where there is a requirement to work nights, or changeable hours dictated by the employer, group disadvantage could be readily inferred. However, if the requirement was to work any period of 8 hours within a fixed window, or some other arrangement that might not be difficult for those with childcare responsibilities, then a tribunal could conclude that group disadvantage is not made out.

Conclusion

It is not impossible for employers to mount a successful defence to cases of this kind by arguing that there is no group disadvantage. But where an employer is seeking to alter working arrangements to introduce a requirement to work, even occasionally, outside the core hours of say 8am to 6pm Monday to Friday, a female is likely to be able to establish group disadvantage. That means that if proceedings for indirect sex discrimination follow, her employer can expect to be called on to objectively justify the need for new working patterns.

Male carers could also bring indirect discrimination proceedings in this scenario, on the basis that a policy which disadvantages women also discriminates against them “by association”.

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