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Fired for refusing to work weekends – NHS nurse wins appeal

9 August 2021

An NHS nurse, Gemma Dobson, has succeeded in her appeal against an employment tribunal, which originally had decided that she was not unfairly dismissed for refusing to work weekends due to childcare commitments. The impact of this ruling means that employment tribunals will need to consider the fact that women are less likely than men to be able to accommodate certain working patterns due to their childcare responsibilities. Our dedicated team of employment law solicitors at Redkite know that disputes in the workplace can cause major emotional and financial upset. That’s why you’ll find our service sympathetic and friendly, yet professional and proactive.

Mrs. Dobson has three children, two of which are disabled. Due to her childcare responsibilities Mrs. Dobson had, for a number of years, worked only 2 days a week – Wednesdays and Thursdays. In 2016, her employer, North Cumbria NHS Trust, considered that there was an increasing need for its employees to work more flexibly to meet service demands and it asked Mrs. Dobson to work the occasional weekend. Mrs Dobson did not accept the change the NHS Trust had imposed and subsequently, she was dismissed. Mrs Dobson claimed that she was unfairly dismissed and that she had been indirectly discriminated based on her sex which is a protected characteristic.

Indirect sex discrimination occurs when an employer introduces a rule or policy which places employees of a particular sex at a disadvantage compared with the opposite sex. Initially, the employment tribunal determined that Mrs Dobson had failed to show that the change in work patterns was of a disadvantage to women, as the other female nurses within her team had agreed to the change, and as a result her claim was dismissed. Mrs Dobson appealed at the Employment Appeal Tribunal which held that the employment tribunal had failed to properly consider the disparity in childcare responsibility. It is well established that women statistically bear a greater burden of childcare responsibility than men. This means that a change in work patterns could have a greater impact on women. Mrs Dobson should not have been required to prove this. Mrs Dobson’s case has been referred back to the original employment tribunal which will reconsider her claims on this basis. The case is considered by many to be a landmark ruling for women’s workplace rights.

Can an employer make changes to an employee’s terms of employment without their consent? 

Employers will sometimes want to make certain changes to employment terms, such as working hours or pay. You should communicate the proposed changes to your employee in writing. If the change cannot be agreed, then the employer may either impose the new changes on the employee without seeking consent or they may terminate the existing contract and offer a new contract which reflects the changes proposed. However, the latter two options are not ideal and could leave an employer vulnerable to claims of constructive unfair dismissal and breach of contract. Therefore, it is always advisable to get an employee’s written consent to a change in contract terms.

Furthermore, if an employer imposes a change then they need to give their employee sufficient notice which is usually the length of the employee’s notice period to terminate their contract. If they fail to give the employee sufficient notice of the proposed change in terms then they may in breach of contract.

Can employees refuse the new terms?

If the contract with your employee does not include a clause which allows you to unilaterally make changes then you should make every effort to reach a compromise with your employee. If you are unable to reach an agreement then you may be in breach of contract which could result in legal action.

If an employee does not agree to the change in terms then they have the following options:

• Work under protest while they consider bringing a claim against you. They should notify you in writing that this is what they are doing.
• Reject the new terms and continue working under their original contract terms. This may lead to their dismissal but if this happens then they could pursue a claim against you for unfair dismissal.
• Resign and make a claim for constructive dismissal.

Furthermore, if you are trying to impose a new term into a female employee’s contract which has a worse effect on female employees than male employees then you could face a claim for indirect sex discrimination and/ or constructive dismissal. To justify the change to the employment terms, you will need to be able to show that there is a legitimate business reason for the change, that the change in question is proportionate in the circumstances, and that it was necessary taking into account your employee’s individual circumstances.

If you are an employer looking to change your employee terms and conditions of employment, and want to assess all of the relevant risks involved, please feel free to contact our specialist Employment Law Team for independent legal advice. Click here for Employment Law Team