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

[stumbledin]

“It means everything knowing that others also believed in me and my strength in staying dedicated to my journey for justice,” she said. “I truly hope that in the future other working mothers won’t be discriminated against for having caring responsibilities; especially those that care for disabled children.”

Jane van Zyl, the chief executive of Working Families, who gave evidence to the tribunal, said losing the case would have represented “a huge step backwards for women’s workplace rights”.

www.theguardian.com/money/2021/jun/23/nhs-nurse-sacked-over-weekend-working-wins-landmark-case

So now it is enshrined in law that women are the main carers of children?

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

No, that's not how I understand it. The court said an employer cannot just assume that what works for men and some women, works for all women. And that the reality of women's lives must be taken into account. That's because it continues to be a fact that more women than men have caring responsibilities. Not that they should have them, just that they do.

I’m puzzled by the case as a whole. She wasn’t able to do the job because she wasn’t available to work the required hours due to her care responsibilities. Not due to her biological sex.

I wouldn't say it enshrines in law that mother's are to be the main carers, but it backs up societies norms. Women are viewed as primary carers.

How many of us women have the school ring us first for a bump or fall rather than dad. I know it's happened to me.

How many of us take time off to take children to hospital appointments or dentist appointments.

Generally because a wage inequality women are in the lesser paid jobs, so we get the shit end of both stocks less pay in our careers and more at home reaponisbility.

Now I'm not saying that's right, and there's still so much to change. But society at present views mother's as the primary carers, so perhaps a bit of legal protection whilst society shifts slowly to shared parental responsibility isn't such a bad thing.

In the end the difference between nen and women is the fact that women are the sex class who become pregnant and give birth. Everything stems from that and anyone denying that that is the core of all sexual discrimination is either deluded or has an agenda to deflect.

Anyone not determined to be disingenuous knows that reproductive biology is the root of sexual discrimination.

I understand that many (most?) women end up with being the main provider of child care.

But surely (particularly as the case was supported by Working Families) that the court should rule that whoever has child care responsibilities should be allowed to have this taken into account irrespective of sex.

It seems a huge step backwards in women's rights.

As said above it isn't sex discrimination.

Any decent employer, trade union or campaign group should be fighting for those with caring responsibilities to have these taken into account.

I just dont understand how it was accepted as sex discrimination.

It's sex discrimination because it simply would not happen to a man.

stumbledin the reasons for racial or homophobic discrimination are sometimes glossed over by wealth and social class (mainly wealth) the same goes for sexual discrimination. Just because ten percent of a category manage to escape discrimination doesn't mean that the category aren't discriminated against. The sexual class who bear children are the sexual class usually discriminated against because they bear and consequently care disproportionately for children. That's what sexual discrimination boils down to - biology.

I just dont understand how it was accepted as sex discrimination.

The ruling is on quite a narrow point of law. The tribunal hasn’t been asked to determine how caring responsibilities ought to interact with flexible working policies across the board. It has been asked to determine whether having a flexible working policy that requires occasional weekend work is, as a matter of fact, discriminatory to women.

The answer has been determined to be yes, because as a matter of fact women are more likely than men to have caring responsibilities. That obviously doesn’t mean men never have those responsibilities, or that they can’t be negatively effected by flexible working policies. It simply means that as a matter of fact, women are more likely to experience harm as a result of the policy than men, because as a matter of fact women are more likely to be carers than men.

Tribunals can only rule on the specific question referred to them. They can’t determine whether a policy should take into account any parent’s caring responsibilities if that’s not what they have been asked. In this case, they were essentially asked ‘does this policy operate to discriminate against women?’, and the answer is ‘yes’.

Sorry - I am quite tired but nothing I have said means I deny the reality of what happens in women's lives because of their biology.

I am talking about the way the law has been used. Particularly by the campaign group Working Familes. Google them if you aren't aware of their work.

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.

This is a campaign group that is all about "parental" rights, fathers being invovled, etc., etc., etc..

They have taken a line of defence that undermines their own campaigning position.

Personally I have never trusted groups that say they are about parents being equal and so on.

I am just taken aback at such a blatant contradiction on their part.

And the fact that through this double standard have now got it enshrined in law that because men cant be trust to be an equal parent then we better make allowances for mothers.

This would make sense if say women could only need to work part time for a full time salary because we know that in reality they will be the ones doing all the domestic work.

A step backwards. Entrenching stereotypes as inevitable.

And the fact that through this double standard have now got it enshrined in law that because men cant be trust to be an equal parent then we better make allowances for mothers.

This isn’t what the ruling says at all. It is simply taking account of the factual reality that women are more likely to be carers than men. There is no judgment, positive or negative of this fact, and no indication that women ‘should’ be primary carers. Just an acknowledgment that they more commonly are.

I'm not going to repeat myself about the stated aims of the group whose aims are about "parents" then reverting to sex discrimination.

I am talking about the political implications.

I hope it leads to employers having to offer fixed contracts as standard, so as not to discriminate against people who have caring responsibilities because this is a real issue for single parents and disabled people on benefits.
We've been discriminated against for decades, we are not permitted to apply for 'as and when' jobs when returning to work but you can only ask employers for a fixed hours and pay contract.

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.

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.

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.

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?)

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...

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.

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

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.

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.

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.

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.

@Floisme

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?)

I agree. Child free and childless women will be hugely impacted - particularly in certain areas where women are the dominant sex in the workforce (nursing, care staff, etc).

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.

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.