Dobson v Cumbria Partnership NHS Foundation Trust – employers flexible working requirements

In this article we are going to look at the case of Dobson v Cumbria Partnership NHS Foundation Trust which relates to an NHS employer’s requirement for a nurse to work flexibly.

Dobson v Cumbria Partnership NHS Foundation Trust: the case

In this particular case, Mrs Dobson claimed unfair dismissal and indirect sex discrimination after she was dismissed by the Trust in 2017 from her community nursing role as she was unable to comply with the new flexible working arrangements. Mrs Dobson argued she could not comply with the new flexible working due to childcare responsibilities. The Trust adjusted the original request for Mrs Dobson to work flexibly to give her several weeks advance notice of when she would have to work on a weekend or a different day to usual. The Trust considered Mrs Dobson was not willing to reach any sort of compromise. The Tribunal took into consideration that the Trust had tried to reach an agreement, but Mrs Dobson was not willing to suggest an appropriate alternative arrangement.

The particular issue in question was that of proportionality. Section 19 of the Equality Act 2010 sets out that discrimination occurs where a person (A) applies to another person (B) a provision, criterion, or practice (PCP) that is discriminatory in relation to a relevant protected characteristic of person B’s. In this case the relevant characteristic would be sex.  An employer can seek to defend an allegation of discrimination in these circumstances by showing that the PCP is a proportionate means of meeting a legitimate aim.

The Trust was able to show that dismissing Mrs Dobson after her refusal to work any weekends was a proportionate means of achieving the legitimate aim of providing care in the community 24/7, balancing workload among the team and reducing costs of using more senior nurses at the weekend.

Mrs Dobson’s dismissal due to being unable to comply with the new flexible working was also deemed to be fair by the Tribunal. The Tribunal considered a number of factors when making its decision. Those factors included: the proposals for a compromise, the organisation justification for the change and offer of re-engagement.

Comment

This case highlights the importance of carefully balancing the interests of employees and those of the organisation.

Further guidance and support

If you are a healthcare provider and need help navigating any employment issues, Brachers Employment team can assist you with employee relations issues, through to helping with Employment Tribunal claims.

Our employment law solicitors are based in Maidstone and Canterbury and are ready to help with any legal advice you may require so please get in touch today.

This content is correct at time of publication