The judgement makes clear that all future cases can take it ‘as fact’ that women are more likely to suffer a disadvantage as a result of childcare responsibilities than men.
The original case was brought by Gemma Dobson, a working mother of three children, whose employer tried to demand she move to frequently changing shift patterns, which were impossible to manage alongside childcare. Given her caring responsibility – two of her children were disabled - she could not do the changed hours and she was dismissed as a result.
Working Families intervened in the Employment Appeal Tribunal to protect the rights of women from being discriminated against at work because of the ‘childcare disparity’.
Emily Pritty, head of legal services at Working Families, said, ‘Today’s judgement is hugely welcome news for working mothers who contact our helpline, many of whose employers have tried to impose changed terms or have lost their jobs because of their caring responsibilities.
‘Going forward, this is vital clarity for the many cases of indirect sex discrimination where employers attempt to force changes that make childcare impossible and have the effect of forcing women out of their jobs.’
If the appeal had been rejected, it would mean that individual women would have to present evidence to show that women shoulder more of the caring burden than men - making discrimination claims more difficult than they already are.
Jane van Zyl, CEO at Working Families, gave evidence to the tribunal earlier this year to show that difficulties for women still persist with evening and weekend working, with unpredictable hours presenting particular difficulties.
‘We are delighted with the result in Mrs Dobson’s case,' she said. 'This has clarified and reinforced the existing protection for working mothers from discrimination: something that many women who come to us for help rely on in their cases. We know that women have shouldered the major burden of caring responsibilities through the pandemic. As the economic impact of Covid takes hold and the furlough scheme comes to an end, this judgement is a welcome protection that makes it clear that anything that impacts on childcare impacts disproportionately on women.
'Of course we want to live in a world where caring responsibilities are shared equally, but the hard truth is that we are nowhere near that yet. To lose this case would have represented a huge step backwards for women’s workplace rights, and we are really pleased with the judgement.’
Claire Darwin and Emma Foubister of Matrix Chambers acted for Working Families on a pro bono basis.
Ms Darwin said 'the judgment of the Employment Appeal Tribunal provides welcome clarity for Employment Tribunals and litigants about what evidence women need to adduce in indirect sex discrimination claims that challenge working patterns which conflict with childcare responsibilities.'
A spokeswoman for North Cumbria Integrated Care NHS Foundation Trust said, 'The trust notes the judgment of the Employment Appeal Tribunal.
'The trust does not believe that it 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.'
The case will now return to the original tribunal, which will reconsider the claims of indirect discrimination and unfair dismissal.