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“Childcare disparity” – new tribunal guidance

Posted on: July 20th, 2021 by Ginny Hallam

It’s still accepted by tribunals that women face a “childcare disparity”. This case is a reminder that employers may face successful discrimination claims if their decisions put childcaring females at a detriment.

Background 

An NHS Trust introduced a new flexible working policy requiring all employees to work some weekends. This employee was unable to comply because of her childcare responsibilities for her three children (two with disabilities). She was subsequently dismissed and brought a claim for unfair dismissal and indirect discrimination.

Practical impact of the Employment Appeal Tribunal’s (EAT) decision

This means that when you consider introducing a provision, criteria or practice (PCP) potentially putting those caring for children at a detriment, you should bear in mind that the PCP opens the door to possible sex discrimination claims based on the EATs guidance. Your choices are to adjust the PCP so that there is no such detriment or be ready to objectively justify it.

While the EAT case centres around the introduction of a flexibility policy, it’s often the case that employers are faced with decisions that may put those caring for children at a detriment. If you received a furlough request from a female when schools were closed and decided to operate a blanket refusal, you could have found yourself on the wrong end of a sex discrimination claim (for the reasons set out by the EAT) in respect of which you may have needed to objectively justify the PCP.

Intelligent Employment is here to help if you need guidance and support introducing new flexibility policies- find out more

 

This update is accurate on the date it was sent (20 July 2021), but may be subject to change which may, or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.