The Employment Appeal Tribunal has held that a tribunal hearing an indirect sex discrimination claim erred by failing to take judicial notice of what it referred to as the “childcare disparity”, namely that women, because of their childcare responsibilities, were less likely to be able to accommodate certain working patterns than men.
Mrs Dobson (the Claimant) was employed by the North Cumbria Integrated Care NHS Foundation Trust (the Trust) as a Band 5 community nurse within the Cockermouth Community Nursing Team. She worked fixed days per week. Following a review in 2016, the Trust sought to introduce more flexible working. In particular, it introduced a requirement that community nurses work flexibly, including working at weekends.
The Claimant was unable to comply because of her caring responsibilities for her three children, two of whom are disabled. She was dismissed.
She brought claims of unfair dismissal and indirect discrimination and was unsuccessful in the Employment Tribunal. She appealed against that decision.
Section 19 of the Equality Act 2010 (EqA 2010) provides that A discriminates indirectly against B where:
- A applies to B a provision, criterion or practice (PCP).
- B has a protected characteristic.
- A also applies (or would apply) that PCP to persons who do not share B’s protected characteristic.
- The PCP puts or would put persons with whom B shares the protected characteristic at a particular disadvantage compared to others.
- The PCP puts or would put B to that disadvantage.
- A cannot show the PCP to be a proportionate means of achieving a legitimate aim.
Courts sometimes give judicial notice to matters without admissions from a party or the need for evidence. Phipson on Evidence (19th Edition) states that:
- There are two broad categories of matters of which judicial notice may be taken:
- those where the facts “are so notorious or so well established to the knowledge of the court that they may be accepted without further enquiry”; and
- those that “may be noticed after inquiry, such as after referring to works of reference or other reliable and acceptable sources”.
- The court must take judicial notice of matters directed by statute and of matters that have been “so noticed by the well-established practice or precedents of the courts”.
- Beyond that, the court has a discretion and may take judicial notice of a relevant matter and may require it to be proved in evidence.
- The party seeking judicial notice of a fact has the burden of convincing a judge that the matter is one capable of being accepted without further inquiry.
Allowing the appeal, the Employment Appeal Tribunal held that the Employment Tribunal had fallen into error by limiting the pool for comparison to the team in which the Claimant worked.
The provision, criterion or practice (PCP) in this case was the requirement to work flexibly, including at weekends.
That PCP was applied to all community nurses across the Trust. Logic therefore dictated that the appropriate pool for comparison was all community nurses.
The Employment Tribunal was also wrong to reject the claim that there was group disadvantage on the basis that there was no evidence of the same. The Employment Tribunal failed to take judicial notice of the fact that women, because of their childcare responsibilities, were less likely to be able to accommodate certain working patterns than men. These conclusions meant that, in the circumstances of this case, the findings on justification and unfair dismissal could not stand and would have to be revisited.
The EAT observed that judicial notice of the childcare disparity had been taken in several authorities. That was not to say that the matter was set in stone since many societal norms and expectations change over time. However, the assumptions made and relied upon in the authorities with respect to the childcare disparity were still very much supported by the evidence presented to the EAT.
Nevertheless, the childcare disparity does not inevitably lead to the conclusion that any form of flexible working puts or would put women at a particular disadvantage. This would depend on the particular provision, criterion or practice (PCP) in question.
In this case, the PCP was to work flexibly, including at weekends, as and when required by the employer. The employee had no flexibility under the arrangement to choose working hours or days within certain parameters. As such, the relationship between the childcare disparity and the PCP in question was likely to result in group disadvantage being made out.