Judge allows employment tribunal appeal in case where nurse was fired for not working weekends

A judge has allowed an appeal from a community nurse who claimed unfair dismissal and indirect sex discrimination after being sacked for not agreeing to work weekends.

The judge, Mr Justice Choudhury, said employment tribunals must take into account the difference in childcare responsibilities between men and women when deciding on a case.

The nurse, Ms Dobson, worked fixed weekdays at North Cumbria Integrated Care NHS Trust in order to look after her three children, two of whom are disabled.

Ms Dobson was dismissed after the trust asked community nurses to work some weekends. She was unable to work weekends due to her childcare responsibilities.

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She took her employer to an employment tribunal but was unsuccessful. The tribunal found that the gradually increasing demands on the trust's service meant that it was no longer possible to ignore the need for all employees to work flexibly.

Considering the claim of indirect discrimination and whether the women we put at more of a disadvantage than the male employees, the tribunal held that "no evidence at all was put before the Tribunal to support this".

However, Justice Chowdry found the tribunal failed to consider the "child care disparity" when deciding if she was disadvantaged by the policy.

He also said the tribunal erred in law when it did not consider and instead dismissed the claim of indirect discrimination because of the lack of direct evidence of group disadvantage.

At the employment appeal tribunal, Mr Justice Choudhury said women bear the greater burden of childcare responsibilities, which can limit their ability to work certain hours. He said that the childcare disparity was a matter that employment tribunals "must take into account if relevant".

The judge ordered the matter to be remitted to the same tribunal to consider the issues of indirect discrimination and unfair dismissal again.

A spokesperson for North Cumbria Integrated Care NHS Trust said: "The Trust notes the judgment of the Employment Appeal Tribunal. The trust does not believe that is appropriate to comment further at this stage given that the matter will return to the original Employment Tribunal.

"It is important to note that the Employment Appeal Tribunal did not find in its judgment that Mrs Dobson was discriminated against or unfairly dismissed by the Trust which is why the matter will return to the original Employment Tribunal for further consideration."

Mo Sethi QC, Sophia Berry and Bianca Balmelli of Littleton Chambers represented Ms Dobson on a pro bono basis. Mark Sutton QC with Stuart Brittenden represented the trust.

Adam Carey

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