1. Following the Claimant’s successful appeal in Dobson (No. 1) (reported at [2021] ICR 1699) where Choudhury P gave seminal guidance on ET’s taking judicial notice of the “childcare disparity” in establishing group disadvantage for the purposes of s. 19(2)(b) EqA 2010, the matter returned to the EAT. In Dobson (No. 2) Choudhury J (again) provides practical guidance on how ETs should approach the issue of objective justification in s. 19(2)(d).
2. This litigation arose out of the termination of C’s employment in 2016. C was employed by the Trust as a Community Nurse. Since 2008 C worked a fixed pattern where she would only ever work on Wednesdays and Thursdays to align with her childcare needs. In 2016, the Trust introduced a requirement that all Community Nurses would have to work flexibly, including at weekends (“the PCP”). Following a series of meetings to discuss the new working arrangements and attempts to find a compromise, the Trust issued C with notice of termination and offered re-engagement on revised terms which she did not accept. C brought claims of indirect sex discrimination and unfair dismissal which were dismissed by the ET (“the First ET”).
3. C successfully appealed to the EAT in Dobson (No. 1) where Choudhury P (as was) decided that the ET had erred in concluding that there was no evidence of “group disadvantage” to found a claim of indirect discrimination, and that it should have taken judicial notice of the “childcare disparity”, which acknowledged that women generally bear the greater burden of child care responsibilities than men. The claims were remitted to the same ET to consider whether the Trust could justify the PCP as a proportionate means of achieving a legitimate aim, and also whether the dismissal was fair.
4. The Second ET (EJ Langridge sitting with members) accepted that the PCP pursued one or more legitimate aims, namely the need to provide care to patients in the community, 24 hours per day, 7 days a week and to balance workload amongst the team and reduce the cost of having to use band 6 and 7 registered nurses on a weekend. The ET found as a fact that in light of the childcare arrangements available to C she was able to work an occasional weekend with advance notice. This was “in fact manageable” albeit with some difficulty. It was a “striking feature” that C did not suggest any alternatives in circumstances where the Trust was seeking to find a compromise. The ET found that the PCP was justified and that the claim of indirect sex discrimination failed, as did the claim of unfair dismissal.
5. That gave rise to the second appeal in Dobson (No. 2). Choudhury J dismissed the appeal and provided practical guidance as to how ETs should approach the issue of justification in relation to the following issues:
(1) To what extent is the ET permitted to take into account the impact of the disadvantage caused by the PCP on the circumstances of the particular claimant?
(2) The extent to which an employer is required to monitor the impact of PCPs upon groups in order for a PCP to be justified.
(3) What if a claimant suggests no alternatives?
(4)The approach to the question of justification in circumstances where there is some elasticity inherent within the PCP.
(1) To what extent is the ET permitted to take into account the impact of the disadvantage caused by the PCP on the circumstances of the particular claimant?
6. C suggested that the ET had placed too much weight on the impact of the disadvantage occasioned to her rather than assessing the evidence of disadvantage generally. The EAT approached this issue with large doses of common sense and pragmatism: “Where the law stipulates no precise level of “focus” to be placed on either the group or the individual, it is a matter of judgment for the Tribunal as to how to approach the available evidence…” (at [21]).
7. What is of critical importance is that the ET is required to balance the extent of that disadvantage as against the needs of the employer. Provided at least the ET does have regard to group disadvantage, “… the analysis is not undermined by considering the impact on the individual” (at [24]). That resonates with the observations of Ralph Gibson LJ in University of Manchester v Jones [1993] ICR 474 (at 497G-498A). However, the EAT went further to elucidate why this was the case: as a matter of “common sense” it is “logical to consider so far as is possible on the evidence, the impact of the PCP both on the individual and the group” (at [25]). The ET had done this. The fact that every other community nurse was ultimately able to comply with the PCP was relevant in assessing the seriousness of the detriment caused to the group (at [34]).
(2) The extent to which an employer is required to monitor the impact of PCPs upon groups in order for a PCP to be justified.
8. C contended that as the Trust had not monitored the extent of the disadvantage caused by the PCP, and had not produced any evidence in relation to this, should have resulted in the ET concluding that the burden of justification was not capable of being discharged. The main pillar of C’s argument relied upon the guidance given by the EAT in Essop (at [35]):
“a wise employer will monitor how his policies and practices impact upon various groups and, if he finds that they do have a disparate impact, will try and see what can be modified to remove that impact while achieving the desired result.”
9. Choudhury J considered the far reaching consequences of this argument, deciding that Essop does not establish any such requirement. Indeed, as Baroness Hale also observed: “The requirement to justify a PCP should not be seen as placing an unreasonable burden upon respondents”. The EAT observed that there can be no doubt that a requirement to undertake a forensic analysis across many thousands of employees at the Trust to whom the PCP was applied, and by reference to the myriad of ways in which disadvantage or inconveniences might have manifested, or additional childcare costs incurred, would place an unreasonable burden on the Trust. That reasoning is capable of wider application, reinforcing the point that an ET should not require from an employer evidence which it cannot reasonably be expected to produce: Pitcher v University of Oxford [2022] ICR 338 (per Eady P, at [111]).
(3) What if a claimant suggests no alternatives?
10. The ET considered that although C was under no formal legal obligation to identify to a less intrusive measure than the PCP which would have enabled the Trust to achieve its legitimate aims, it was nevertheless “striking” that she had no contribution to make during the various meetings to discuss a compromise in her working pattern. That reflected the position during both substantive hearings.
11. Choudhury J rejected the suggestion that C’s responses during the prolonged internal iterative process were irrelevant. Any objective analysis of the “seriousness” of the discriminatory effect will almost inevitably involve some investigation of the difficulties caused and the extent of the inability to comply with the PCP. That could include, as it did in this case, whether C’s insistence on being unable to comply was reasonable in the circumstances. In order to assess the seriousness of the detriment – bearing in mind that no other employee in the group was unable to comply – and whether the PCP was reasonably necessary, the ET was entitled to take account C’s stance and whether she was able to suggest any alternative. (at [46] – [48]).
12. This approach was entirely consistent with Essop where Baroness Hale explained (at [47]):
“47 … This is a particular and perhaps unusual category of case. The burden of proof is on the respondent, although it is clearly incumbent upon the claimant to challenge the assertion that there was nothing else the employer could do. Where alternative means are suggested or are obvious, it is incumbent upon the tribunal to consider them. But this is a question of fact, not of law, and if it was not fully explored before the employment tribunal it is not for the EATor this court to do so.”
13. As Choudhury J reasoned, while it is correct that a claimant is not under any sort of legal requirement to propose alternatives in every case, nevertheless Essop “makes it clear beyond peradventure that whether or not alternatives are suggested may be a material consideration” on the issue of justification (at [49]). That presumably applies with no less force as to what (if any) suggestions were raised internally before proceedings were issued, as well as during the ET proceedings.
(4) Justification and the elasticity inherent within the PCP.
14. Dobson (No. 2) appears to be the first occasion which directly engages with the practical issue of how an ET should approach the question of justification where the PCP is framed in a way so as to permit a degree of flexibility as to its application. Many PCPs are framed in generic ways, for example, as is increasingly common following the pandemic, the requirement to maintain a reasonable level of attendance at the office.
15. Here, the ET observed (at [208]) that “…The aim was to ensure 24/7 cover for the service, but the means of achieving that aim was negotiable to a point…”. The PCP did not specify the regularity with which Community Nurses were required to work flexibly or at weekends. C asserted that the ET had fallen into error by focussing on the wrong PCP, namely her ability to comply with a “diluted” PCP rather than the one which was in fact applied to her which resulted in her dismissal. The reality of the position was, as the EAT accepted, that the application of the PCP which involved only occasional weekend working on notice was not materially different in substance to the PCP so framed (at [53] – [56]).
16. In the event of any doubt about this, Essop provides some measure of reassurance for employers. A reasonable employer will endeavour to reach an accommodation with the employee (at [55]). The headline point is this: as part of the proportionality assessment, it is prudent for an employer to explore whether there is any reasonable scope for compromise which would not undermine its aim(s). Where an employer does take such steps, that is to be commended, rather than something to be relied upon to demonstrate that an ET has committed an error in approach in asking whether a diluted version of the PCP is justified.
The judgment can be found here.
Stuart Brittenden KC appeared for the Trust, instructed by Mark McKeever (Director), Ward Hadaway LLP.
