Nurse sacked for refusing to work weekends wins appeal over ‘childcare disparity’ discrimination

A nurse sacked for not working weekends because she had to look after her children has won a “landmark” legal appeal.

Gemma Dobson, a community nurse from Cockermouth, Cumbria, had worked fixed days because she had caring responsibilities for her three children – two of whom are disabled.

But following a review in 2016, North Cumbria Integrated Care NHS Foundation trust sought to introduce more flexible working and a requirement that community nurses work some weekends.

Ms Dobson was unable to work weekends because of her childcare commitments – and was subsequently dismissed from her role.

The 40-year-old took her former employers to an employment tribunal citing unfair dismissal and indirect sex discrimination, but was unsuccessful.

However, at a hearing of the Employment Appeals Tribunal in London, her lawyers argued she had only been compared with the members of her small team, rather than community nurses across the trust as a whole, in relation to the flexible working requirement.

This was upheld by judge Mr Justice Choudhury, who said women bear a greater burden of childcare responsibilities than men, which can limit their ability to work certain hours.

He termed this fact as “the childcare disparity”, which he said employment tribunals “must take into account if relevant”.

Ms Dobson said she was “totally delighted” with the outcome of the appeal after her “utter disbelief” at the outcome of the original tribunal.

Employment lawyer Doreen Reeves, from Slater and Gordon, said: “It is established in law that there is a ‘childcare disparity’ as women are more likely to take the lion’s share of caring for children.

“Working mothers should not be tasked to prove this assumption time and time again when they bring employment tribunal claims.

“This important landmark decision gives a clear warning: working mothers with caring responsibilities should not be penalised if they are not able to work flexibly to meet business needs or demands of a service.”

The case will now go back before an employment tribunal to again consider the issues of indirect discrimination and unfair dismissal.

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.”

Additional reporting by Press Association