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Flex Isn’t Always Best

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BY Gerry O'Hare
Employment Law & HR

It is no secret that in the modern world customer demand and business needs quickly evolve. In response to this it may become necessary for businesses to consider changes to employees’ working patterns to allow increased flexibility. This may seem like a relatively straightforward change easily achieved by implementation of flexible working in future employees’ contracts of employment. However, where it may become more complex is in terms of present employees whose contracts of employment do not permit the flexibility that may now be required.

The recent Employment Appeal Tribunal judgment of Dobson -v- North Cumbria Integrated NHS Foundation Trust [2021] suggests that businesses should think carefully about how any such changes - contractually requiring employees to be more flexible - may impact individual employees and whether any such change could be considered indirectly discriminatory. Indirect discrimination occurs when a policy or practice of the employer’s is applied neutrally to all staff but it has a disproportionately negative impact on a group who share a particular protected characteristic. The employer can justify the policy or practice if it can show that it is a proportionate means of achieving a legitimate aim.

The Claimant’s dispute arose from the introduction of flexible working by the Respondent. The Claimant was employed as a Community Nurse with the Respondent working set shifts five days per week. The new flexible working arrangement would have required the Claimant to work varying shifts, including weekend working. The Claimant has three children from whom she is the primary caregiver. It was on this basis that the Claimant notified the Respondent she was unable to work flexibly. The Respondent dismissed the Claimant and the Claimant subsequently raised claims of unfair dismissal and indirect sex discrimination. These claims were dismissed by the Tribunal.

The Claimant appealed and the Employment Appeal Tribunal upheld the appeal. Amongst other things, it ruled that there does not necessarily need to be evidence of group disadvantage within the particular group concerned for a claim of indirect discrimination to be upheld. There have been multiple cases in the past which have shown that women, as a general rule, are typically the primary caregivers for children. Therefore, the Claimant in this case should not have been expected to show a group disadvantage for the female colleagues within her team, the Tribunal should just have accepted the disadvantage as a fact. This case has now been remitted to the same Tribunal to consider the issues of indirect discrimination and unfair dismissal again.

It is worthwhile highlighting that the above does not necessarily create precedent that the requirement to work flexibly will always disadvantage women compared to men or that it would conclusively give rise to indirect sex discrimination against women.

The Employment Appeal Tribunal’s Judgment does, however, serve as a useful reminder that businesses should always consider if there is a group with a particular protected characteristic who might be disadvantaged, when altering ways of working. Undertaking Equality Impact Assessments before implementing significant changes is advisable.

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