The issue of childcare and availability for work has recently been considered by the Employment Appeal Tribunal (EAT) in Dobson v. North Cumbria Integrated Care NHS Foundation Trust (the link to which can be found here). In another case grappling with similar issues (Hughes v. Progressive Support Limited),the EAT held that the employer did apply a provision, criteria or practice (PCP) requiring the employee to work certain hours irrespective of childcare needs, despite the fact that, even when she did not comply with this requirement, the employee was not penalised.
Ms Hughes was a support worker for Progressive Support Limited (PSL). PSL agreed that Ms Hughes could work allocated hours (“considerate hours”) which allowed her to fulfil her childcare needs. However, on learning that Ms Hughes had been working at a second job, PSL temporarily stopped this arrangement and instead required that Ms Hughes worked the hours that supported PSL’s business needs. Over the course of December 2018 to January 2019, PSL allocated hours to Ms Hughes irrespective of her childcare needs on the misunderstanding that her parental responsibilities were no longer an issue. PSL also indicated that Ms Hughes might be put on a “zero-hour” contract.
If Ms Hughes did not work the new hours allocated to her, she was not directly penalised. However, she did face a reduction in pay for the hours not worked. Ms Hughes and PSL agreed to resume the considerate hours arrangement in January 2019. Notwithstanding this, Ms Hughes brought a claim for indirect sex discrimination relating to the brief period in which these arrangements had been withdrawn and PSL’s alleged failure to consider her childcare needs during that time.
The claim was dismissed by the Employment Tribunal (ET) on the basis that PSL’s approach did not amount to a PCP. This conclusion was reached because Ms Hughes was not penalised for failing to work the hours allocated to her, and therefore she was not subjected to a requirement to work the hours directed by PSL.
On appeal, the EAT overturned the ET’s decision. It found that PSL had imposed a PCP that had a direct effect on Ms Hughes – namely, the requirement for her to work hours that PSL determined in order to meet her full contractual hours. In addition, the EAT held that the ET did not consider the impact this had on Ms Hughes during the period in which the considerate hours arrangement was withdrawn. Instead, the ET had focused on the lack of consequence if Ms Hughes chose not to work the full hours. The EAT also considered that the ET failed to take into account the financial impact of this, or the prospect of moving onto a zero-hour contract.
Of particular note, the EAT referred to the Dobson case and specifically highlighted that, while judicial notice enables the childcare disparity to be established as a fact without specific evidence, that disparity does not necessarily mean that a group disadvantage is made out for the purposes of proving indirect discrimination. In Ms Hughes’ case, proving that disadvantage this will depend upon the relationship between the childcare disparity and the PCP requiring Ms Hughes to work the hours determined by PSL. However, the EAT did point out that judicial notice may make a finding of group disadvantage more likely.
The EAT has remitted the case to a different tribunal to consider the question of whether the PCP put female employees at a particular disadvantage and, if so, whether there was an objective justification for such a disadvantage.
This case highlights how important it is for employers to proactively address any policies, practices or rules that might impact groups of employees with one or more protected characteristics. Equality Impact Assessments can be incredibly helpful in identifying potential risks. In cases where there might be a particular disadvantage, they also help assess whether this is required to achieve a legitimate aim and whether the specific PCP is a proportionate means of achieving that aim.
It is important to remember that, even if a PCP does create a particular disadvantage for a protected group, it does not follow that it is automatically unlawful. For employers, (i) evidencing that they have considered how a PCP may impact protected groups of employees at the time it is implemented, and (ii) demonstrating that such impact went no further than necessary in meeting a legitimate aim, will go a long way in presenting a compelling defence.