Possibly, depending on the circumstances.
A recent Employment Appeal Tribunal decision has held that an employee was discriminated against when her employment was terminated after she refused to work at weekends.
The claimant in this case was a community nurse who had had three young children, two of whom were disabled, and had therefore been working the same two (fixed) days a week since the birth of her first child in 2008.
The employer (the Trust) sought to introduce flexible working and created a requirement that community nurses work flexibly, including working at weekends.
Initially, it was concluded that the claimant would be unable to change her days given her personal situation. However, a few years later her employer reviewed the flexible working arrangements again in an attempt to insist that the claimant work an occasional weekend once a month. The claimant immediately responded that this would not be possible due to her caring responsibilities and maintained this position throughout a grievance process. She was then dismissed by her employer.
She brought claims in the Employment Tribunal for unfair dismissal, victimisation and indirect discrimination. These claims were dismissed by the Tribunal and so she appealed against that decision.
The Court of Appeal allowed the appeal and Mr Justice Choudhury said in his Judgment that whilst societal norms and expectations change over time, and 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.
Consequently, employers need to consider “childcare disparity” as women still bear the greater burden of childcare responsibilities than men and this can limit their ability to work certain hours.
“Whilst the childcare disparity is not a matter directed by statute to be taken into account, it is one that has been noticed by courts at all levels for many years…As such, it falls into the category of matters that a tribunal must take into account if relevant.”
The case will now go back before an employment tribunal to again consider the issues of indirect discrimination and unfair dismissal.