And speaking of reading brings me to this week’s case of Dobson v North Cumbria Integrated Care NHS Foundation Trust [2021]. Settle down with a cup of tea as we consider whether the Employment Tribunal erred in law in dismissing Mrs Dobson’s claims of unfair dismissal and indirect sex discrimination arising from new flexible working requirements.

Employed as a Band 5 community nurse from 1 September 2004 until 19 July 2017, Mrs Dobson had given nearly 13 years’ service to the Cockermouth Community Nursing Team. She had three children, two of whom were disabled and for many years worked a fixed part-time pattern (Wednesdays and Thursdays) to accommodate her childcare responsibilities.

In 2016, the Trust introduced a new rostering system requiring greater flexibility, including weekend working. Mrs Dobson explained that she could not comply with the revised requirement because of her childcare commitments. After consultation and her continued refusal to agree to the new working pattern, she was ultimately dismissed in July 2017 for failing to accept the contractual changes.

Mrs Dobson brought claims for unfair dismissal, victimisation, and indirect sex discrimination under the Equality Act 2010. Her indirect discrimination claim was based on a provision, criterion or practice (PCP) requiring community nurses to work flexibly, including weekends, which she argued placed women at a particular disadvantage because women are more likely to bear primary childcare responsibilities.

The ET dismissed all her claims. In relation to indirect sex discrimination, it accepted there was a PCP but found that it did not place women at a particular disadvantage when compared with men. The ET confined the comparison pool to her small team and concluded that both female colleagues and the one male colleague were able to comply with the new requirement. It also held that there was insufficient evidence to show that women generally were disadvantaged by the PCP. On unfair dismissal, the ET held that the Trust had a legitimate business need for flexibility and had acted reasonably in dismissing her after consultation and consideration of alternatives.

Mrs Dobson appealed on the grounds that the tribunal had wrongly limited the comparison pool and failed to take judicial notice of the childcare disparity affecting women, leading it to incorrectly reject her claims of indirect sex discrimination and unfair dismissal.

The EAT allowed the appeal in respect of the indirect sex discrimination claim. The EAT held that the ET had erred in law in its approach to the appropriate pool for comparison. By limiting the pool to Mrs Dobson’s immediate team, the ET adopted an unduly narrow focus. The correct approach was to consider all community nurses across the Trust who were subject to the same flexible working requirement. Importantly, the EAT also confirmed that tribunals are entitled to take judicial notice of the well-established social reality that women are more likely than men to bear primary childcare responsibilities. As a result, a requirement to work certain flexible or weekend patterns is capable of placing women at a particular disadvantage as a group. The ET was therefore wrong to require specific statistical evidence to establish that group disadvantage in circumstances where this broader societal context is widely recognised.

Because the ET’s analysis of indirect discrimination was flawed at the stage of identifying group disadvantage, its conclusions on objective justification and unfair dismissal were rendered unsafe. The appeal was allowed and the matter remitted to a freshly constituted tribunal for reconsideration.

In essence, the EAT clarified that an unduly narrow comparison pool may amount to an error of law, and that tribunals may properly rely on judicial notice of the disproportionate childcare burden borne by women when determining indirect sex discrimination claims. The case was therefore sent back to be reheard in accordance with those principles.

This case shows that employers face legal risks when unilaterally imposing flexible or weekend working, especially on employees with long-standing arrangements linked to childcare. Such changes can give rise to indirect sex discrimination claims if they disproportionately affect women, as well as unfair dismissal claims if consultation, alternatives, and justification are inadequate. The case highlights the importance of meaningful consultation, careful equality assessment, and ensuring any changes are reasonable and proportionate.