1/ Dobson v North Cumbria Integrated Care - In a flexible working requirement discrim claim, the EAT usefully reminds that judicial notice can be taken of the fact that childcare responsibility renders it less likely women can be flexible in hours worked than men. #ukemplaw
2/ D worked for NCIC NHS Trust as a community nurse. She has 3 children, 2 disabled. She worked 2 consistent days a week, but then NCIC required community nurses to change to work flexibly including occasional working weekends.
3/ NCIC's response was to fire & seek to re-engage D on the new terms. D didn't accept them & thus her employment terminated. She brought unfair dismissal, victimisation & indirect sex discrimination claims, but it's the latter we're mainly interested in for the appeal.
4/ A quick word though on the unfair dismissal claim - the ET found NCIC had acted reasonably as the service need required greater flexibility & the employer did what they could to provide reasonable alternatives such as limit when D would work non-standard days & maximise notice
5/ In looking for particular disadvantage, the ET found the PCP of flexible work applied to men & women in D's team & that only D couldn't meet the requirement thus whilst there was individual disadvantage, group disadvantage wasn't proven. Had it been, justification was made out
6/ Grounds of appeal centred on errors in forming the comparative pool, lack of judicial notice of disadvantage to women by flexible working requirements, failure to consider a hypothetical comparison, flawed reasons on justification & consequent error re unfair dismissal.
7/ On the pool, the EAT relied on Lady Hale's guidance in Essop that generally you identify all those affected by the PCP & that then forms your pool. The PCP was applied to all community nurses across the trust, not just in D's team, & thus all community nurses made up the pool.
8/ On the question of burden of proof of particular disadvantage, the EAT noted from Homer & Essop that statistical proof wasn't essential - particular disadvantage could be shown in its absence.
9/ 1 way of proving particular disadvantage absent statistical evidence is through judicial notice. The President derived from Phipson on Evidence two categories of judicial notice: (i) facts so notorious as to be accepted without further enquiry; (ii) facts noticed after inquiry
10/ For category (i), the court must take judicial notice, whilst category (ii) is a matter of discretion. The burden is on a claimant to convince a judge that a matter falls within category (i). A court should give notice to the parties before relying on stereotypical assumption
11/ Plenty of authorities accepted the childcare disparity, & hence it fell into category (i). Whilst male childcare responsibility has progressed, the position remains far from equal. If the childcare disparity is put in issue, the ET must take judicial notice of it.
12/ Even if judicial notice is taken of the childcare disparity, to find group disadvantage the ET needs to consider the interrelationship between that disparity & the PCP. The judicial notice doesn't invariably mean the disadvantage is made out.
13/ Here though disadvantage was made out in light of NCIC's expectations. NCIC sought on individual disadvantage to argue that giving D notice meant her difficulties weren't insurmountable, but the EAT found impossibility to overcome disadvantage isn't necessary.
14/ Sweeping up other EqA issues, the EAT held the ET had considered the hypothetical comparison but had also confined that to D's team rather than all community nurses in the trust. Justification had to be revisited as it needed to be considered against the correct pool.
15/ Finally on unfair dismissal, whilst it's not necessarily the case that a discriminatory dismissal is unfair (see Grosset), the ET needed to revisit the point in light of the errors made on the EqA decision. It was possible the outcome would not be different.
16/ If you've read the whole thread to find a link to the judgment, I'd best not disappoint. Here it is:
assets.publishing.service.gov.uk/media/60d1d31e…
#ukemplaw
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