Justifying indirect discrimination and flexible working decisions

Blog

14.12.2023

In 2021, the Employment Appeal Tribunal (EAT) confirmed the continued existence of the "childcare disparity", whereby women, because of their greater childcare responsibilities, will be less likely to be able to comply with certain working arrangements than men. The case was remitted to the Employment Tribunal to decide whether a requirement for the claimant to work flexibly amounted to indirect sex discrimination.

The Employment Tribunal has now ruled in Dobson v Cumbria Partnership NHS Foundation Trust (Dobson) that, despite the childcare disparity, on the facts the employer was objectively justified in implementing flexible working arrangements and there had been no indirect discrimination.

This is a useful case for employers seeking either to implement or refuse flexible working requests. As this blog explains, it particularly highlights the importance of having a clear business aim which is applied proportionally in order to justify any flexible working decision.

Indirect Discrimination and the childcare disparity

By way of reminder, an employer (potentially) indirectly discriminates against an employee if it applies a "provision, criterion, or practice" (PCP) to all employees, but which in practice disadvantages employees with a protected characteristic (as defined by the Equality Act 2010).

In respect of flexible working, the imposition of flexible working arrangements or the refusal of a flexible working request can lead to a claim of indirect discrimination because of the protected characteristic of sex. In particular, the EAT in Dobson (which we discuss here) ruled that the courts ought to take judicial notice of the "childcare disparity" in indirect discrimination cases and the fact that more women than men tend to have childcare responsibilities which makes it harder for them to comply with flexible working requirements. The EAT recognised that "the fact that compliance is possible but with real difficulty, or with additional arrangements having to be made, or by shifting the childcare burden onto another, can still mean that there is a disadvantage".

For a more detailed summary of the law on indirect discrimination, see our blog "A reminder of indirect discrimination and how to avoid it".

Objective justification

It is possible to defend a claim for indirect discrimination if an employer can show that the PCP is a proportionate means of achieving a legitimate aim. This is known as "objective justification".

Legitimate Aim

The first part of the test, determining whether there is a legitimate aim, tends to be easier for employers to establish. The scope of what might be a legitimate aim is potentially unlimited, though it does need to relate to a "real business need" and there must be evidence to show that the employer’s actions contribute to the pursuit of the aim.

Examples of legitimate aims include (but are in no way limited to):

Promoting access to employment
Protecting health and safety
Maintaining high quality service for customers
Sharing out employment opportunities fairly

While economic reasons may be taken into account when establishing a legitimate aim, costs alone will not be a sufficient business need.

Note that establishing a legitimate aim for the purposes of objective justification is different from the eight statutory reasons employers may rely upon to refuse a flexible working request. For more on these, see here.

Proportionality

In assessing the second part of the test for objective justification, determining proportionality, Tribunals will need to consider whether there are other, less discriminatory (or non-discriminatory) ways of achieving the legitimate aim. If a measure goes further than is reasonably necessary, it will be disproportionate.

The judgment in Dobson provides a useful reminder of what Tribunals will consider when determining if a decision is proportionate. Employers do not need to demonstrate that no other proposal is possible. Instead, the discriminatory effect needs to be looked at both quantitatively (in terms of the numbers or proportion of people affected) and qualitatively (in terms of its impact and how long lasting it is).

In determining this, the Tribunal reiterated the test set out by the Supreme Court in Homer v Chief Constable of West Yorkshire Police:

Does the measure have a legitimate aim sufficient to justify the limitation of a fundamental right?
Is the measure rationally connected to that aim?
Could a less intrusive measure have been used?
Bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to the aim, has a fair balance been struck between the rights of the individual and the interests of the community?

The Tribunal's decision in Dobson

The Claimant was a part-time community nurse, who worked two fixed days in order to care for her three children, two of whom are disabled. Her employer, the NHS Trust, proposed all community nurses work flexibly, with the inclusion of occasional weekend work, with notice. The Claimant’s position was that she was unable to comply with the new requirements due to her childcare arrangements, and as a result was dismissed.

Having been directed to take notice of the childcare disparity, the Employment Tribunal needed to decide whether the NHS Trust could objectively justify its decision to require community nurses to work flexibly. It found as follows:

1. Legitimate aim: The Tribunal accepted that the NHS Trust’s legitimate aim was "the need to provide care to patients in the community, 24 hours per day, seven days a week and to balance workload amongst the team".

2. Proportionality: The Tribunal concluded that the disadvantage to the Claimant was on the "lower end of the scale". She was only required to work occasional weekends and had some family childcare available. The NHS Trust offered different alternatives to the Claimant, who was "intransigent" in her refusal to "contemplate any form of compromise whatsoever". The disadvantage to the Claimant was held to be proportionate to the business needs of the NHS Trust.

Lessons for employers: justifying flexible working decisions

Employers wishing to reject flexible working requests brought by women with childcare responsibilities, or impose different working patterns on such employees, should be mindful of the potential risk of claims for indirect discrimination. While the Dobson case shows that women in such circumstances will not automatically be disadvantaged by the childcare disparity, it is important that employers are alive to cases where the childcare disparity could be at play and consciously consider ways to alleviate any potential disadvantage caused.

The praise given by the Tribunal to the NHS Trust in Dobson provides employers with useful insight into what the Tribunal will give weight to in the handling of such cases. In this case the employer:

Had a cogent business case underpinning the need for change.
Carried out an extensive consultation exercise with the claimant (the Tribunal was "was stuck by the time and effort the respondent gave to the consultation process").
Modified its position repeatedly in its efforts to find a way of avoiding terminating the claimant’s contract.
Made a sincere attempt to enable her to continue in her role, but the failure to reach an agreement meant no other option was available other than dismissal.

These demonstrate the importance for employers of establishing a clear business rationale for flexible working decisions and both consulting and exploring compromise with employees when implementing them in order to establish a defence of objective justification.

Changes to flexible working

The importance of consultation is further underpinned by changes being made to the flexible working regime on 6 April 2024 by the Employment Relations (Flexible Working) Act 2023, particularly the introduction of a duty on employers to consult with employees before coming to a decision on flexible working requests. More details can be found in our Update on flexible working.

Significantly, since that blog was first written, the Government has introduced secondary legislation confirming that the right to request flexible working will become a day one right from 6 April 2024.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.