Mother of three who wouldn't work weekends wins appeal against sacking

A mother of three who was sacked for refusing to work weekends has won a 'landmark' employment tribunal against her employers.

Community nurse Gemma Dobson, 40, from Cockermouth, Cumbria, won her appeal at the Employment Appeals Tribunal in London, with the judge citing, “the childcare disparity” of mothers, weighing in her favour.

Dobson had worked fixed days due to her caring responsibilities for her children, two of whom are disabled.

However, following a review in 2016 North Cumbria Integrated Care NHS Foundation trust sought to introduce more flexible working and a requirement that community nurses work some weekends.

Dobson was unable to work weekends due to her childcare commitments and was subsequently dismissed from her role.

She then took her former employers to an employment tribunal citing unfair dismissal and indirect sex discrimination, but was unsuccessful.

However, her appeal was upheld by the president of the Employment Appeal Tribunal (EAT), Mr Justice Choudhury in London.

Solicitors at Slater and Gordon acting on behalf of Dobson argued she had only been compared with the members of her small team, rather than community nurses across the trust as a whole, in relation to the flexible working requirement.

This was upheld by the EAT, which also said that women bear the greater burden of childcare responsibilities than men and that can limit their ability to work certain hours.

Mr Justice Choudhury termed this fact as “the childcare disparity” and ruled that this is a matter that employment tribunals “must take into account if relevant”.

Dobson was supported in her case by the charity Working Families, which promotes a healthy work-life balance.

Following the successful appeal, Dobson said: “I am totally delighted with the outcome of the appeal after my utter disbelief at the outcome of the original tribunal.

“I have continued to seek justice for over four years now.”

The judgment has clarified the law on identifying the correct pool for comparison, how the burden of proof operates and how particular disadvantage can be established by claimants in such cases, Dobson’s lawyers said.

Employment lawyer Doreen Reeves, from Slater and Gordon, said: “It is established in law that there is a ‘childcare disparity’ as women are more likely to take the lion’s share of caring for children.

“Working mothers should not be tasked to prove this assumption time and time again when they bring employment tribunal claims.

“This important landmark decision gives a clear warning, working mothers with caring responsibilities should not be penalised if they are not able to work flexibly to meet business needs or demands of a service.”

The case will now go back before an employment tribunal to again consider the issues of indirect discrimination and unfair dismissal.

A spokeswoman for North Cumbria Integrated Care NHS Foundation Trust said: “It is important to note that the Employment Appeal Tribunal did not find in its judgment that Mrs Dobson was discriminated against or unfairly dismissed by the trust, which is why the matter will return to the original employment tribunal for further consideration.”

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