Nurse dismissed after refusing to work weekends wins appeal

A nurse who was dismissed for refusing to work weekends has won a landmark ruling that could affect thousands of women with children.

Gemma Dobson was a community nurse with North Cumbria Integrated Care NHS.

She had worked fixed days because she had three children, including two with disabilities.

However, she was dismissed after the trust introduced weekend working. She said she was unable to work Saturdays and Sundays because of her childcare responsibilities.

Dobson brought claims to the Employment Tribunal, saying that she had been unfairly dismissed and been subjected to indirect sex discrimination.

The tribunal ruled against her saying that her dismissal was not unfair because, under the Equality Act, “being a female with caring responsibilities” was not a protected characteristic.

It pointed out that the other women in Dobson’s team, including those with children, were able to work weekends. Therefore, the flexible working requirement did not create a group disadvantage on which she could base a claim.

Dobson took the case to the Employment Appeal Tribunal (EAT), which ruled that the tribunal had failed to take into account the “childcare disparity” faced by women in the workplace.

The EAT said the tribunal had been wrong to limit the comparison just to Dobson’s team of nurses. The new weekend working policy applied across the trust and so the comparison group should have included all the trust’s community nurses.

Crucially, the EAT ruled that the tribunal was wrong to say the new policy did not create a group disadvantage because it failed to recognise the childcare burden that fell disproportionately on women.

The judge, Mr Justice Choudhury said: “The tribunal erred in not taking 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.”

He added that weekend working was a policy “that was inherently more likely to produce a detrimental effect, which disproportionately affected women”.

The case was remitted back to the Employment Tribunal so that it can be decided in light of the EAT’s ruling.

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G Dobson and Cumbria Integrated Care NHS Foundation Trust
Working Families Intervenor
Employment Appeal Tribunal
22 June, 2021
Mr Justice Choudhury
Ms V Branney
Miss S M Wilson