25th June, 2021
NHS nurse sacked over weekend working wins landmark ruling – Aaron and Partners Comment
The Employment Appeal Tribunal (EAT) has ruled that an employment tribunal failed to consider the “childcare disparity” faced by women when it said a nurse was not unfairly dismissed because she was unable to work weekends. The claimant’s case will now be revisited in the lower court.
The claimant, in this case, was a Community NHS Nurse who was unable to work new shift patterns introduced by her employer, the Integrated Care NHS Foundation Trust North Cumbria. Due to childcare commitments for her three children, two of whom are disabled, the Claimant refused to work these new shifts. She was then informed that the Respondent had no other option but to issue a notice of dismissal and reengage the Claimant on the new terms requiring her to work additional days. She refused to sign the new terms and was subsequently dismissed.
In reaction to this, Debbie Coyne, Employment Law Senior Associate at legal firm Aaron & Partners said:
“While the court’s ruling is a positive step, especially for women who are working mothers, it will likely have raised concerns for many employers. Businesses have had to, and still are facing a multitude of complex employment challenges as a result of the pandemic, and so it’s important that they have a clear understanding of what this ruling means for them.
“This case serves as a reminder for businesses to carefully consider whether any provision, criterion or practice (PCP) put in place will indirectly disadvantage individuals identified as having a protected characteristics under the Equality Act 2010. In this case, the requirement to work flexibly, including at weekends meant the employer was indirectly disadvantaging women due to the fact that women, because of their childcare responsibilities, are less likely to accommodate certain working patterns than men.
“If, as in this case, the employee refuses to work the new shift pattern or raises concerns, careful consideration should be given by the employer, and they must consider alternative ways to meet the objective so that discrimination does not occur.
“Our advice to employers would be to consider and review their flexible working policies and consider those employees with caring responsibilities. Businesses should keep a record of their business aims when introducing new policies or changes in working practices and considerations given to discrimination issues that may arise and alternative options and to always seek legal advice if they have concerns.”
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