Is this a double edged victory for women - judge says childcare obligations of femal employees must be taken into account

Social care provision is not a matter for employers.

I never even mentioned child care so I'm not sure why your throwing that at me. And it was you who said her work days had changed.

You're tying yourself in knots trying to prove.....well, it's really not clear what you are trying to prove. This is a good case outcome for women.

Re the disability issue - the employee was not disabled. Or rather, that was not the case brought.

So it would be disability discrimination by association.
And we know this was not DIRECT discrimination, because it was a 'provision or criterion' etc.
There is no concept of indirect disability discrimination by association as far as I know.

The lawyers can't decide to argue where no law exists! They can't just make up new law.

this was about altering an existing contract. ie I dont hink they were ending the role she has, but just wanted her to work different days.

Nope. If you change the days that fundamentally changes the role to the extent that it no longer exists and a new role, on different days, is created. That is a redundancy situation.

I find it all very odd.

It's really not. Your protestations are very strange. It's lucky we have lawyers and judges to interpret and uphold the law

Personally I don't think employers should just be able to change the terms of a contract willy-nilly like that, but apparently they can, so the only case she had against them was on the basis of indirect sex discrimination.

No, they can't. She could also claim breach of contract and/or resign and claim constructive dismissal on the basis of the change in contract undermining her trust and confidence in the employer.

She may have also claimed these, there may be some reason she couldn't, and she may not have wanted to resign. But indirect sex discrimination is not the only claim she could bring.

If a policy disproportionately affects one sex and not the other, its sex discrimination - even if the fact that one sex is more affected is in itself proof of inequality.

Nicely put.

It's pretty straightforward. Her claim against her former employer is based on indirect sex discrimination, ie they implemented a rule that would adversely affect more women than men. That is because far more women than men have caring responsibilities.

Personally I don't think employers should just be able to change the terms of a contract willy-nilly like that, but apparently they can, so the only case she had against them was on the basis of indirect sex discrimination.

If a policy disproportionately affects one sex and not the other, its sex discrimination - even if the fact that one sex is more affected is in itself proof of inequality.
The Equality Act can only tackle the specific example of discrimination in the workplace, not in society as a whole.

Also while I agree we should push back against the disproportionate caring responsibilities women have, it would be damaging not to recognise the status quo. If we said the law couldn’t recognise the actual disadvantage women face because they shouldn’t have to face it, it would take away one of the legal protections women have in not being discriminated against because of their current caring situation.

I dont see why this was bought under sex discrimination and surprised Working Families didn't fight it as a parents rights issue.

I would assume they did that because sex is a protected characteristic but being a parent isn't. Therefore if they'd fought the tribunal on the basis of "parent's rights" they presumably wouldn't have had a case. (NB: I am not a lawyer so this might be wrong.)

It doesn't matter the sex or parental status of the colleagues.

The ruling was on indirect discrimination, which means a criterion, policy or practice that puts people of the protected characteristic (in this case, sex) at a disadvantage and which cannot be objectively justified. So even if everyone was in the same position as her the case would have gone the same way because it is indirect discrimination.

In answer to your question OP, it couldn’t be brought as rights of parents and working families because that is not a protected characteristic. Being a woman is. So the courts or here a Tribunal can get involved as there is a legal basis.

So they can campaign for families generally but they can’t litigate about it using the Equality Act.

It is indirect sex discrimination because women are disproportionately affected, or to use the statutory language, are put at a “particular disadvantage” as compared with men by a policy requiring staff to work weekends.

I wonder if this would have been considered if all of the woman’s colleagues had been women. The article I read said 8 men and 1 woman working alongside her.

Childcare and the impact on working is always highlighted in the top things affecting women.

Whilst it is actually a parent thing while this inequality exists woman should use the law as it stands.

Why weren't they campaigning with their client (who happened to be a woman) for the rights of any person who has child care responsibilies to have these taken into account when arranging work rotas.

That would be a great campaign. There is currently a gap in the law whereby fathers don't have the same legal protection that mothers have for indirect discrimination claims (ie, a father could be equally as affected by this policy, but he couldn't bring an indirect discrimination claim because although he as an individual is affected, he isn't part of a protected class of people that are disproportionately affected).

But it would be a campaign to change the law. It wouldn't give a remedy to this woman in this case now.

It's a tough line to walk between reinforcing stereotypes and recognising the factual situation of women generally taking on childcare responsibilities and so needing protection from discrimination as a class. Pretending that the disparity doesn't exist won't benefit women.

If the job has changed then it’s changed 🤷‍♀️

If the old job is gone and you can’t work the hours of the new job then I presume you’d just be made redundant.

Tuberoses its discrimination to tell someone on a fixed shifts contact that they now have to work a varying shift pattern, because that is constructive dismissal. A lone parent carer for disabled children already employed on fixed hours is forced to resign if told they now have to work shifts, because they simply cannot work weekends.

Completely different if a job was advertised as variable shifts in the first place.

So now it’s discrimination to ask women to work weekends? Yeah that’s going to help a lot when women apply for jobs!

Actually where I work single parents are prioritiesed for family friendly hours - which sounds reasonable until you realise that a lit of every other weekend dads manage to get those hours because HR aren't allowed to check what their childcare/ custody arrangements are! There are a divorced former couple with one child both working in different departments of our organisation and they both have the family friendly hours, while I don't because I'm married to my children's father...

Its definitely not "men" as a category who take on the antisocial hours! Fathers who ask for consideration due to childcare responsibilities seem to be given that consideration far more easily than women, who are more likely to be expected to juggle to show that they are a team player and not expecting special treatment in my experience.

A bit like a boy who wants to be a cheerleader being indulgently invluded despite being a bit below the average standard of the team while a girl who wants to play football where there's no girl's team is told she'll just have to show she's better than the boys at football to earn the right to be accepted by the boys on the team.

I work shifts in healthcare but not in the UK.

For a lot of women set hours are what would help.

Some women with childcare responsibilities actually want weekend work specifically because they have a partner or parents who work "office hours" and want or need to work when that person/ those people is/ are available to do childcare.

A lot of mothers of young children want or need school hours work and obviously those jobs are as rare as hens teeth and usually don't come with any of the extra pay of antisocial hours and shift work. Possibly that's discrimination in itself as its overwhelmingly women with childcare responsibilities in the school hours jobs (not their male partners), but shift allowances and antisocial hours allowances are what it says they are and there to compensate for the unattractive nature of shift/ late night/ Sunday working... tricky one.

We don't get any allowance for starting at 6am but do for working after 8pm, which is a bit of a funny definition of antisocial hours - almost as if its socialising which is important not problems for childcare of course...

The burden won't just fall on male staff, it will fall on women who don't have young children. I didn't became a mum till my 40s so I was at the sharp end of this practice for years and, much as you try to be understanding, it ends up really pissing you off.
(Why is this in Sex and Gender?)

Should weekend shifts have a higher pay rate to incentevise staff

This is already factored into NHS pay where additional % of salary is paid for unsociable hours.

I agree with the points about how this will be managed in practice because I can see an indirect discrimination case in the future if the burden of unsociable hours falls more heavily on male staff.

Personally, I think women will always tend to be (on average) the main carers of children.

The fact that only women get pregnant and give birth means that there is a strong attachment / bond between mother and child. It's fairly instinctive for children, especially when young and/or unwell, to want the presence of their mum, is it not?
There's nothing artificial or socially constructed about the fact that the maternal bond means children tend to want to be looked after by their mother and mothers tend to want to look after their children and will prioritise their career and working arrangements around this.

That may not always be possible for various reasons, and more men these days are helping out with childcare which is a good thing that should continue to be encouraged. But as I see it, the broader societal trend will always skew towards women taking on the bulk of childcare, especially when the children are younger. If single parents are more likely to be women, then this will also affect those broader societal trends.

The reality of this will prove to be a challenge for certain sectors like nursing / healthcare which is overwhelmingly female dominated but also requires shift and weekend working due to the nature of the field (another caring role albeit a paid one).

If we (as a society) are

1. wanting / expecting healthcare services to be available over weekends in addition to standard weekday hours, and
2. the majority of healthcare roles are staffed by women, and
3. the majority of childcare responsibility falls on women which results in less flexibility in working arrangements

then this is going to be a staffing headache for health boards. I don't know what the long-term solution is.
There definitely needs to be greater government investment in healthcare to train and retain more staff and pay them well. Should weekend shifts have a higher pay rate to incentevise staff? (Maybe this is already the case)
We also may have to let go of notions of things like extended healthcare hours if women want to be able to prioritise their family.

stumbledin
I think if it was a campaign they could campaign for those with child care responsibilities to be exempted, but as an employment tribunal, they needed a law; ergo sex discrimination because that’s what’s protected in law.