Rosemary Connolly

In an important decision concerning sex discrimination and flexible working, the Employment Appeal Tribunal (EAT) in England considered the case of a community nurse who had claimed unfair dismissal and indirect (sex) discrimination as a result of having had her employment terminated by her employer.

The facts were that her employer, North Cumbria Integrated Care NHS Foundation Trust, had introduced a requirement that community nurses work flexibly including working at weekends.

Ms Dobson was unable to comply with the requirement to work at weekends because of her caring responsibilities for her three children, two of whom are disabled. As a result, her employment was terminated.

In an important determination likely to affect a broad range of women working with childcare responsibilities who work atypical hours, the Employment Tribunal ruled that it was in error for the Tribunal not to take judicial notice of the fact that women, because of their childcare responsibilities, were less likely to be able to accommodate certain working patterns than men.

Accordingly, the earlier decision of the Tribunal on justification in the context of the unfair dismissal could not stand and would have to be revisited afresh.

The charity Working Families made submissions as an intervenor in the case.

The judgment is important in its acknowledgement of the fact that invariably women continue to bear the greater burden in terms of childcare and that employers therefore need to be alert to the real possibility of engaging in indirect discrimination where a general requirement to work, e.g. weekends as in this case, is imposed.

Even though it is imposed on all employees, as this judgment points up, it will disproportionately adversely impact upon women.

• Rosemary Connolly is the principal solicitor at Rosemary Connolly Solicitors in Warrenpoint, Co Down.