Back in 2021 the Employment Appeal Tribunal (EAT) held in Dobson v North Cumbria Integrated Care NHS Foundation Trust that tribunals should consider the "childcare disparity" when considering indirect sex discrimination claims arising out of working arrangements - i.e. the fact that women are more likely to bear the primary burden of childcare.
An interesting EAT case has recently considered Dobson and confirmed that, although tribunals can accept (as an established fact) that women are more likely to be the primary carers of children, it will still be up to a claimant to show that a particular practice (in this case the need to travel) produces a group disadvantage before a claim for indirect sex discrimination can succeed.
Mrs Perkins had primary caring responsibility for her two children, both under five. Her employer decided to restructure its operations and Mrs Perkins was told that she would need to travel to the employer's other offices, although this could be planned around childcare. Mrs Perkins objected and submitted a grievance. A compromise of one day of travel a month was offered, but Mrs Perkins remained unwilling to travel and was given notice of redundancy. She brought a claim for indirect sex discrimination arguing that the provision, criterion or practice (PCP) relating to travel disadvantaged her, and women as a group, due to childcare responsibilities.
The tribunal upheld her indirect claim, treating it as an established fact that women tend to be the primary carers of small children, and so therefore more likely to be put at a disadvantage by the requirement to travel.
On appeal, the EAT accepted that in a claim of indirect sex discrimination judicial notice might be taken of the childcare disparity, but pointed out that this would not necessarily mean that group disadvantage was made out. Although in some situations the link between being a woman and the disadvantage might be "obvious" it is up to the tribunal to carefully assess the particular nature of the PCP to determine whether it would clearly give rise to difficulties for women as a group, rather than just the individual claimant.
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