Tribunal should take judicial notice of childcare disparity (Dobson v North Cumbria Integrated Care NHS Foundation Trust)

The ‘childcare disparity’ (ie the fact women bear a greater childcare responsibility than men) is so well known in the context of indirect sex discrimination claims, and has so often been the subject of judicial notice in previous cases, that it is incumbent on an employment tribunal to take notice of it in the circumstances of an indirect sex discrimination relating to a requirement to work flexibly including at weekends, according to the EAT.

Dobson v North Cumbria Integrated Care NHS Foundation Trust, Working Families (Intervenor) ( UKEAT/0220/19/LA)

What are the practical implications of this case?

This judgment provides a helpful reminder of the approach to be taken by employment tribunals when considering indirect sex discrimination claims, in particular in respect of:

• identifying the correct ‘pool’ for comparison of disparate impact between men and women, and
• proving group disadvantage

The EAT explains that the ‘childcare disparity’ has been recognised in many previous authorities and that those authorities still hold good because — whilst things might have progressed somewhat in that men do now bear a greater proportion of child caring responsibilities than they did decades ago — the position is still far from equal.

The fact that tribunals should take judicial notice of the ‘childcare disparity’ makes it easier for women to establish group disadvantage. It means that they will not have to provide their own supporting evidence of that matter when pursuing claims of indirect sex discrimination in circumstances where factors relating to childcare put them at a disadvantage, eg if the provision, criterion or practice (PCP) applied by the employer requires night working or changing shift patterns.

Case details

• Court: Employment Appeal Tribunal
• Tribunal Panel: The Honourable Mr Justice Choudhury (President), Ms Branney, Miss Wilson CBE
• Date: 22 June 2021

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