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Justifying indirect discrimination: lessons from Dobson v North Cumbria Integrated Care NHS Foundation Trust
Adrian Fryer
The Equality Act 2010 is the primary legislative framework covering discrimination in employment. In terms of the protected characteristic of sex, several different forms of discrimination are recognised. One of these is indirect discrimination. If an employer operates a provision, criterion, or practice (PCP) which places those of a certain sex at a particular disadvantage when compared with others, this will be discriminatory unless the employer can justify the PCP as a proportionate means of achieving a legitimate aim.
Indirect sex discrimination cases often focus on the ‘disadvantage’ which women are placed at in the workplace by virtue of bearing the majority of the childcare burden. This can mean that employer requirements for flexibility are harder for them to meet than men. Tribunals accept, without the need for recourse to statistical evidence, that a ‘childcare disparity’ exists, and take judicial notice of this fact. However, this does not mean that employers are unable to demand flexibility from female members of their workforce. It is all a matter of whether the requirement for flexibility can be objectively justified.
In the recent case of Dobson v North Cumbria Integrated Care NHS Foundation Trust, the Employment Appeal Tribunal took a closer look at indirect sex discrimination and justification. Mrs Dobson was employed as a nurse. She worked on Wednesdays and Thursdays. The Trust, wanting more flexibility from its workforce, introduced a requirement that all nurses work occasional Saturdays. Mrs Dobson objected on the basis that, as she had three children, this requirement amounted to indirect sex discrimination.
The EAT held that a requirement to work occasional Saturdays had a disproportionate impact on women as a group owing to the childcare disadvantage. It also held that Mrs Dobson suffered an individual disadvantage. However, her indirect sex discrimination claim failed. The EAT held that the requirement to work occasional Saturdays was justified by the Trust as a proportionate means of achieving a legitimate aim.
The EAT considered four practical points on justification in indirect discrimination cases:
- Individual and group disadvantage both matter. When assessing justification, tribunals must consider the disadvantage suffered by the affected group, but may also take account of the impact on the individual claimant. Looking at the claimant’s personal circumstances does not undermine the analysis, provided the wider group disadvantage is also considered.
- Employers are not required to conduct extensive monitoring. While employers should be aware of the impact of their policies, there is no legal obligation to undertake detailed monitoring or forensic analysis of how a PCP affects every protected group. Tribunals should not expect employers to produce evidence that it would be unreasonable to obtain.
- The absence of alternatives can be relevant. Although claimants are not required to suggest less discriminatory alternatives, a tribunal may take into account whether any alternatives were proposed, particularly where the employer has sought to explore possible compromises. This may be relevant when assessing proportionality.
- Flexibility within a PCP can support justification. Where a policy allows some scope for accommodation or compromise without undermining the employer’s legitimate aim, tribunals may take that flexibility into account when assessing proportionality.