Women are More Likely to Bear Childcare Responsibilities – That’s a Fact

Judges do not operate in a vacuum and are entitled to take the view that some facts are so obvious that there is no requirement to prove them. In an important ruling, the Employment Appeal Tribunal (EAT) found that that principle applies to the fact that women are more likely to bear childcare responsibilities than men.

The case involved a community nurse who was primary carer for her three children, two of them disabled. Due to her responsibilities as a mother, she worked only on Wednesdays and Thursdays. Her NHS trust employer introduced a flexible working regime that required her to work on weekends every so often. After she made it clear that she could not meet that requirement, she was dismissed.

Her complaints of unfair dismissal and indirect sex discrimination were subsequently rejected by an Employment Tribunal (ET) on the basis that the flexible working requirement was applied to all members of her nursing team, both male and female. There was no evidence that the requirement put female members of the team, as a group, at a particular disadvantage when compared to male colleagues.

In upholding her challenge to that outcome, the EAT found that the ET erred in limiting the pool for comparison to the team in which she worked. The flexible working requirement was applied to all community nurses across the trust and logic dictated that the appropriate pool was therefore all community nurses.

The ET was also wrong to reject the discrimination claim on the basis that there was no evidence of group disadvantage. It should have taken judicial notice of the fact that women are more likely than men to have childcare responsibilities and are thus less likely to be able to accommodate certain working patterns. The case was sent back to the same ET for reconsideration in the light of the EAT’s ruling.