The fairness of flexible working
Is a requirement for community nurses to work flexibly, including at weekends, discriminatory? This was a question which was recently revisited by an employment tribunal in Manchester.
The Appellant/Claimant had an arrangement to work for the Respondent two fixed days per week.
The Respondent, Cumbria Partnership NHS Foundation Trust, asked her to work occasional weekends due to community nursing becoming a 24/7 service and treating patients at home with more complex needs. To cover the Claimant, more senior nurses had to work more frequently at weekends.
This was more costly and left them unavailable for management issues during the week. The Claimant could not agree to work weekends as she had two disabled children, and family members could not assist with childcare. She was dismissed and re-engaged under the new work pattern.
The Appellant claimed unfair dismissal and indirect sex discrimination.
The Claimant’s claims were dismissed. As part of the reasoning, the tribunal determined that there was no evidence of group disadvantage to women who, because of childcare responsibilities, were less likely to be able to accommodate certain working patterns than men.
Employment Appeal Tribunal
On appeal, the original tribunal’s decision on the group disadvantage point was held to be wrong. The tribunal should have accepted, without hearing evidence, that more women than men tend to have childcare responsibilities and are more likely to be unable to comply with flexible working requirements. This is known as the ‘childcare disparity’. The case was remitted to the employment tribunal.
Employment Tribunal. Again.
The employment tribunal held that the practice was proportionate to the Respondent’s legitimate aim of needing to provide care to patients in the community 24/7, to balance the workload among the team and reduce the cost of having to use more senior (and therefore more costly) nurses at weekends. It found that requiring the Claimant to work weekends was the only option open to the Respondent in terms of achieving that aim.
This is an example of an employer’s needs prevailing over the employee’s.
Given the impending changes to the flexible working rules, it’s helpful to be mindful that employers can turn down requests for flexible working on certain grounds and that there will be occasions where it is not discriminatory to turn down flexible working requests, even where the reason for making the request relates to a protected characteristic under the Equality Act 2010.
Upon receipt of a flexible working request, you should follow a proper flexible working procedure which complies with any internal procedure in place and the ACAS Code of Practice on handling flexible working requests.
When you want to refuse a request, you need to fully consider all options in discussion with the employee, including whether any alternatives may be less of a disadvantage. You should keep documentary evidence of the process and any consideration/decisions made.
For more information about this article or any other aspect of people services reimagined, download our App for Apple or Android, and contact your integrated HR, employment law and health & safety team at AfterAthena today.
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