Gemma Dobson v North Cumbria Integrated Care NHS Foundation Trust

For justification under section 19 of the Equality Act 2010, the tribunal must balance the employer’s real needs against the discriminatory effect of the PCP on the affected group. That assessment may also consider the claimant’s own disadvantage. It is unlawful to consider only the individual, but no rule prescribes the relative weight to be given to individual and group evidence.

Where the tribunal has considered the group evidence available, its evaluation of the evidence and reasonable inferences will not disclose an error of law absent perversity. A claimant’s stance in consultation, ability to comply, and failure to identify alternatives may be relevant to the seriousness of the disadvantage and the necessity of the PCP, although the burden of justification remains on the employer.

The claimant, a part-time community nurse, had long worked fixed Wednesday and Thursday hours because of childcare responsibilities for three children, two of whom were disabled. The respondent subsequently required community nurses to work flexibly, including at weekends. The claimant could not accept the change and was dismissed.

Her claims for indirect sex discrimination and unfair dismissal were initially dismissed. On her first appeal, the EAT held that the tribunal should have taken judicial notice of the childcare disparity and remitted justification for reconsideration: [2021] ICR 1699.

On remittal, the Employment Tribunal held that the PCP was a proportionate means of achieving legitimate operational aims and that the dismissal was fair. This second appeal challenged the tribunal’s treatment of group disadvantage, its reliance on the claimant’s consultation responses, and the consequential unfair-dismissal finding.

1. Appeal dismissed. The Employment Tribunal made no error of law in holding that the requirement for community nurses to work flexibly, including at weekends, was justified under section 19(2)(d) of the Equality Act 2010.

2. The proportionality exercise required the tribunal to weigh the respondent’s real operational needs against the discriminatory effects of the PCP on the affected group. The group included the claimant. It was therefore permissible to consider both group disadvantage and the claimant’s particular disadvantage. The tribunal could not have confined its analysis to the individual, but the law imposed no prescribed balance of focus between the two.

3. The tribunal had accepted the established childcare disparity and group disadvantage. It also considered the available evidence concerning the wider nursing group, including that no other community nurse had been unable to comply with the PCP and leave employment. In the absence of a perversity challenge, it was entitled to place greater analytical weight on the extensive evidence of the claimant’s circumstances and to draw reasonable inferences from the evidence about the wider group. It was not required to demand a forensic analysis of every possible inconvenience or childcare cost across the respondent’s workforce.

4. The claimant’s responses during consultation were relevant evidential matters. Although the respondent bore the burden of proving justification, the tribunal was entitled to assess the seriousness of the asserted detriment, whether occasional weekend work was manageable, and whether an alternative measure had been suggested. The tribunal did not treat a less frequent requirement as a different PCP: occasional weekend working fell within the stated requirement to work flexibly, including at weekends.

5. Since the indirect-discrimination claim failed, the associated challenge to the finding of fair dismissal also failed.

• Employment Appeal Tribunal: This appeal was dismissed. The tribunal’s remitted decision upholding justification and dismissing the indirect discrimination and unfair dismissal claims remained in force.
• Employment Tribunal: Following remittal after the first EAT appeal, the tribunal held that the PCP was justified under section 19(2)(d) of the Equality Act 2010 and dismissed the indirect discrimination and unfair dismissal claims.
• Employment Appeal Tribunal: In the first appeal, [2021] ICR 1699, the EAT held that judicial notice should be taken of the childcare disparity and remitted the issue of justification.
• Employment Tribunal: The original tribunal dismissed the claims in 2019.