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Indirect Discrimination and the Childcare Disparity

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Indirect Discrimination and the Childcare Disparity

Although fathers are spending more time caring for their children, there is still a ‘childcare disparity’ faced by working mothers.

In a recent case, the EAT gave a judgement regarding the indirect discrimination of a working mother with such childcare obligations.

Employment Partner Paul Burton discusses this case and provides advice for employers.

What is ‘childcare disparity’?

Childcare disparity refers to the childcare commitments which can limit working mothers in terms of work patterns, compared to men.   

There is a ‘childcare disparity’ faced by working mothers which can give rise to arguments of indirect sex discrimination, the EAT ruled recently.

What impact does childcare disparity have for flexible working?

In the case of Dobson v North Cumbria Integrated Care NHS Foundation Trust, the Employment Appeal Tribunal recognised that working mothers must not be indirectly discriminated against by an employer who fails to consider their childcare obligations when looking to enforce rigid work patterns.  

Do employers have to accommodate for childcare?

The community nurse argued that she had been unfairly treated by her employer, the NHS Trust, after it introduced a flexible working pattern which would require her to work some weekends. 

While the original Tribunal decision had ruled the dismissal was not unfair as “a mother with childcare commitments” was not a protected characteristic under the Equality Act, the EAT said that it had been wrong to compare Ms Dobson only to her immediate team of fellow nurses.

The policy applied to all community nurses and the EAT found that this was the correct comparison pool for the purposes of the indirect discrimination claim. 

What implications does ‘childcare disparity’ have in the workplace?

Interestingly in this case it was noted that the so-called ‘childcare disparity’ was not necessarily a thoroughly investigated or even evidenced state of affairs but rather one which was to some extent simply well-known factually.

While the EAT noted that change had occurred since prior cases, it went on to say that assumptions made by courts in relation to the disparity were still reasonable conclusions on the evidence generally available.

The original Tribunal, the EAT ruled, had also failed to exercise its ability to consider this in the absence of specific and quantitative data. 

The case will return to the Tribunal to be reheard and decide on the facts of the case as to whether Ms Dobson was discriminated against. 

Childcare disparity and indirect discrimination: What do employers need to consider?

Paul Burton says: “In the meantime, employers should be aware that while significant progress has been made since the original cases on women having childcare commitments, and men undoubtedly do now take on a larger share of that role, the disparity is still enough that policies can create a disadvantage where they do not consider the disparity itself.

Any such disadvantage may be indirect discrimination unless an employer can objectively justify the policy providing that disadvantage.

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