Mrs G Dobson v Cumbria Partnership NHS Foundation Trust — 2019

Mrs G Dobson worked as a district nurse for Cumbria Partnership NHS Foundation Trust and had, since 2008, been allowed to work 15 hours a week on fixed Wednesdays and Thursdays. In 2016 the Trust introduced a new rostering policy and sought to review flexible working arrangements across the service. After a sequence of meetings, a written business case and an appeal, the Trust maintained that community nurses needed to work more flexibly, including occasional weekends, because of service demands, rota cover and changes in how care was delivered.

The Tribunal rejected the ordinary unfair dismissal complaint. It found that the Trust had a substantial organisational reason for seeking to change the claimant's working pattern and that dismissal for refusal to agree the new arrangement was fair under s.98 ERA 1996. The Tribunal applied the band of reasonable responses test and held that the respondent had consulted over a series of meetings, considered alternatives and supplied a detailed business case. It accepted the claimant's complaint that she had not been warned in writing before the 20 April 2017 meeting that dismissal might be an outcome, but held that she already understood her job could be at risk and that the dismissal appeal before Ms Turnbull was a full rehearing which cured any earlier defect. The Tribunal also said that, even if dismissal had not occurred in April, the claimant would have been fairly dismissed by the end of August 2017 through the sickness absence process.

The automatic unfair dismissal claim under s.104 ERA 1996 failed. The Tribunal held that the claimant was not dismissed because she had asserted the statutory right to request flexible working. Her only flexible working request had been made in 2008, had been agreed, and there was no relevant infringement on that occasion. The Tribunal also noted that the application had been disposed of by agreement, so s.80H(2) ERA 1996 would have prevented a complaint in relation to it. There was no evidence that the decision-makers were influenced by any asserted statutory right when they decided to dismiss or when the appeal was heard.

The victimisation claim under s.27 Equality Act 2010 also failed. The Tribunal accepted that issuing the sex discrimination claim on 7 April 2017 was a protected act, but found that the dismissal process had already been set in train before that claim was issued. It held that Ms Baxter and the other managers involved did not know of the claim when arranging or taking the dismissal decision, and that the prospect of tribunal proceedings played no part in the outcome. The indirect sex discrimination claim under s.19 Equality Act 2010 failed because the Tribunal found no evidence that the PCP put women as a group at a particular disadvantage compared with men. It accepted that the claimant personally had difficult caring responsibilities, including for disabled children, but held that this did not amount to group disadvantage for the purposes of a sex discrimination claim. It added that, if necessary, the Trust's requirement for flexible working was justified as a proportionate means of achieving the legitimate aim of providing a safe and efficient service. The holiday pay claim failed because the claimant did not prove any further entitlement beyond the amount already paid on termination.