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Indirect Discrimination and the Childcare Disparity

Posted on: 21/07/2021

Although fathers are spending more time caring for their children, there is still a ‘childcare disparity’ faced by working mothers.

In a recent case, the EAT gave a judgement regarding the indirect discrimination of a working mother with such childcare obligations.

Employment Partner Paul Burton discusses this case and provides advice for employers.

What is ‘childcare disparity’?

Childcare disparity refers to the childcare commitments which can limit working mothers in terms of work patterns, compared to men.
There is a ‘childcare disparity’ faced by working mothers which can give rise to arguments of indirect sex discrimination, the EAT ruled recently.

What impact does childcare disparity have for flexible working?

In the case of Dobson v North Cumbria Integrated Care NHS Foundation Trust, the Employment Appeal Tribunal recognised that working mothers must not be indirectly discriminated against by an employer who fails to consider their childcare obligations when looking to enforce rigid work patterns.

Do employers have to accommodate for childcare?

The community nurse argued that she had been unfairly treated by her employer, the NHS Trust, after it introduced a flexible working pattern which would require her to work some weekends.

While the original Tribunal decision had ruled the dismissal was not unfair as “a mother with childcare commitments” was not a protected characteristic under the Equality Act, the EAT said that it had been wrong to compare Ms Dobson only to her immediate team of fellow nurses.

The policy applied to all community nurses and the EAT found that this was the correct comparison pool for the purposes of the indirect discrimination claim.

Click here to read the full article.

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