Mrs G Dobson v Cumbria Partnership NHS Foundation Trust: 2401798/2017

EMPLOYMENT TRIBUNALS

Case No 2401798/2017

Between

Mrs G DobsonClaimant

Cumbria Partnership NHS Foundation TrustRespondent

Before

Employment Judge Langridge

Mr M Mensah (instructed by Counsel) for claimant

Mr T Smith (instructed by Solicitor) for respondent

Date 10 August 2023

JUDGMENT

[1]The claimant’s dismissal was fair under section 98 Employment Rights Act 1996.

[2]The claimant was not dismissed for asserting statutory rights and her claim under section 104 Employment Rights Act 1996 fails.

[3]The claimant was not dismissed for making a protected act and her claim under section 27 Equality Act 2010 fails.

[4]The PCP operated by the respondent did not put women at a particular disadvantage and did not therefore amount to indirect discrimination under section 19 Equality Act 2010.

[5]The claimant’s entitlement to holiday pay on termination of her employment was paid in full and there is no further entitlement to holiday pay.

[6]All claims are dismissed.

REASONS

[1]These claims were brought following the termination of the claimant’s employment with the respondent as a district nurse. The underlying dispute which led to the claims being brought related to the respondent’s decision to change the claimant’s working pattern from a fixed part-time one to a more flexible arrangement. The claimant felt unable to agree to that change for reasons relating to her childcare responsibilities.

[2]The hearing took place over four days from 1 October 2018 when the claimant gave evidence on her own behalf. The witnesses for the respondent were Michael Owens (District Nurse Team Leader), Karen Blyth (District Nursing Sister), Barbara Place (Interim Quality & Safety Lead), Jennifer Barbour (Community Manager), Gillian Baxter (Community Manager) and Elizabeth Turnbull (Senior Network Manager). Judgment was given orally on 4 October and written reasons were requested by the claimant within 14 days after that. Issues & relevant law

[3]Although the claimant pursued several claims, the factual basis for them all was closely tied to one core issue, which was whether the respondent was entitled to require the claimant to work on a more flexible basis than the fixed arrangements she had had in place since 2008. As the parties were unable to reach agreement about this, the respondent terminated the claimant’s employment on 19 July 2017 and she complained that this was an unfair dismissal under section 98(4) Employment Rights Act 1996. The respondent relied on section 98(1)(b) of the Act in asserting that there was ‘some other substantial reason of a kind such as to justify the dismissal’ of the claimant. Subject to the Tribunal being satisfied that this was the case, it was then required to determine the fairness of the dismissal having regard to section 98(4) and the band of reasonable responses test.

[4]In addition, the claimant alleged that her dismissal was automatically unfair under section 104 of the Act, because she had asserted a statutory right. Section 104(1) provides that: (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee— (a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or (b) alleged that the employer had infringed a right of his which is a relevant statutory right.

[5]Under section 104(2), it does not matter whether the employee actually has the statutory right in question, nor is it necessary to show that the right was infringed, provided that the employee’s assertions to that effect are made in good faith. The employee has to make it reasonably clear to the employer what right is alleged to have been infringed.

[6]Section 104 goes on to define the statutory rights which are protected. Ignoring the rights which are clearly not relevant to this case (such as those relating to trade union activities or merchant seamen), this claimant was entitled to rely on: … any right conferred by this Act for which the remedy for its infringement is by way of a complaint or reference to an employment tribunal.

[7]In the context of this case, the relevant statutory right was the right to request flexible working under section 80F of the Employment Rights Act 1996. As an employee, the claimant had the right to request a variation to her contractual terms and conditions relating to the hours or the times when she was required to work. Any such application is governed by statutory rules which both the employee and the employer should comply with. If the employee makes an application under section 80F, he or she must:(a) state that it is such an application,

(b) specify the change applied for and the date on which it is proposed the change should become effective, and

(c) explain what effect, if any, the employee thinks making the change applied for would have on his employer and how, in his opinion, any such effect might be dealt with. . .

[8]The employer's duties are set out in section 80G: (1) An employer to whom an application under section 80F is made— (a) shall deal with the application in a reasonable manner, (aa) shall notify the employee of the decision on the application within the decision period, and (b) shall only refuse the application because he considers that one or more of the [statutory] grounds applies …

[9]Under section 80H an employee can make a complaint to an employment tribunal that her employer has failed to comply with its duties under section 80G, for example by rejecting the application on the basis of incorrect facts. Any such claim must be brought within a three month time limit.

[10]Under section 80H(2): No complaint under subsection (1)(a) or (b) may be made in respect of an application which has been disposed of by agreement or withdrawn.

[11]Accordingly, asserting the right to request flexible working does fall within section 104 Employment Rights Act and is capable of protecting an employee from being dismissed for that reason.

[12]In relation to the dismissal claims, the respondent argued that the claimant’s dismissal on the grounds of her long-term sickness absence would have followed in any event, such that any remedy would be subject to reduction under the principles of Polkey v AE Dayton Services

[1987] IRLR 503

[13]The claimant brought two other claims, both under the Equality Act 2010, alleging that her dismissal was an act of victimisation and also that the respondent’s insistence that she work more flexibly, rather than on fixed working days, amounted to indirect discrimination under that Act.

[14]The relevant provisions on indirect discrimination are set out in section 19:(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.

[15]The relevant protected characteristic relied on by the claimant is her sex.

[16]To summarise, the statutory provisions required the claimant to identify a provision, criterion or practice (PCP) operated by the respondent, which put both her individually and the group to which she belongs (women) at a particular disadvantage compared with men. If the claimant could provide evidence in support of those facts, such as to enable the Tribunal to infer that she had been discriminated against, it was open to the respondent to produce evidence displacing that inference and to argue that the PCP was justified, because it was implemented proportionately in the interests of achieving a legitimate aim.

[17]The victimisation provisions are set out in section 27 of the Equality Act: (1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

[18]A protected act is defined as:(a) bringing proceedings under this Act;

(b) giving evidence or information in connection with proceedings under this Act;

(d) making an allegation (whether or not express) that A or another person has contravened this Act.

[19]The protection of section 27 is lost if the employee acts in bad faith.

[20]The final claim was brought as a breach of contract claim in respect of holiday pay which the claimant said was owing on the termination of her employment. There was a dispute between the parties as to the calculation of the entitlement and whether it had been paid in full or not.

Findings of fact

[21]The following is a summary of the key facts in the case, though not an exhaustive review of all the evidence presented to the Tribunal.

[22]The claimant was appointed as a Community Nurse on 1 September 2004 and by the time of these events she was operating at Band 5 working in a small team of nine women and one man. Seven of that team were on Band 5 like the claimant, and two were on the more senior grade of Band 6. Mr Owens, from whom the Tribunal heard evidence, was the only man in the team and the only Band 7 nurse. The nurses on Bands 6 and 7 were carrying out a mix of clinical duties and management duties. All members of the team were working flexibly, including the women who had caring responsibilities for their children. In that group the claimant was the only person caring for children with disabilities, her daughter and one of her sons each having disabilities which increased their care needs.

[23]In 2008 the claimant returned from maternity leave after her daughter’s birth and made a request for flexible working which was agreed. The flexibility was that she would work 15 hours a week, meaning there was a reduction in her working hours, and she would work on fixed days on Wednesdays and Thursdays only. That flexible working agreement was subject at all times to the Trust’s right to review it under its Flexible Working Policy.

[24]In 2012 the claimant’s son was born and in 2014 he was diagnosed with autism. The respondent’s Employment Change Form in 2012 noted that the claimant’s 15 hour flexible arrangement was to continue, although it did not mention any set working days. That said, it was not in dispute that the working pattern was agreed to and did continue on the basis of Wednesdays and Thursdays only.

[25]The claimant’s mother-in-law reduced her own working hours from full-time to part-time so that she could provide childcare on Wednesdays and Thursdays to allow the claimant to continue to work. The claimant’s husband was working Monday to Friday and although he was able to help with the care of their children in the mornings and evenings, the claimant felt it was unfair to ask him to be a weekend carer on his own after doing a full week at work.

[26]On 30 June 2013 a working pattern review meeting took place at which the claimant was asked to work the occasional weekend to support the team. However, on hearing about her difficult domestic circumstances and ongoing caring responsibilities, the respondent stepped back from that and agreed to continue with the fixed days on Wednesdays and Thursdays. That arrangement was not a term of the claimant's contract but rather an accommodation under the Flexible Working Policy which could again be reviewed in the future.

[27]By 2016 the Trust issued a new rostering policy under which all flexible working arrangements were to be reviewed across the Trust. That was the start of a series of steps taken in the claimant's case, beginning in September 2016, to review and discuss her flexible working arrangement.

[28]On 8 September 2016 Mr Owens, the District Nurse Team Leader, met with the claimant and her trade union representative (the union being present at every meeting the claimant later attended), to discuss the arrangements. The claimant was asked to work an occasional weekend, no more than once a month. Her union representative recommended she submit a new flexible working request. The claimant did not see the need to do this and did not submit such a request, as she relied on her existing one. Following the meeting there was to be a referral to Occupational Health and the discussion was to be reconvened after that.

[29]On 13 September the claimant's sickness absence began for reasons relating to the subject-matter of the discussion, and from that point until her later dismissal the claimant did not return to work. That same day the claimant wrote to Mr Owens in response to the discussion of 8 September, saying, “I will not be considering alternative arrangements as I have none available to me”. That sums up the position adopted by the claimant throughout the discussions.

[30]Due to the claimant’s ongoing sick leave, the Trust’s sickness absence review protocols were triggered and a Stage Two meeting took place with Ms Blyth, District Nursing Sister, on 3 November 2016. The issue of the claimant's flexible working was integral to the sickness absence review meetings, and the series of various meetings which followed after that formed in effect one continuous sequence.

[31]The claimant felt unable to return to work while the flexible working issue was unresolved, and at this early stage she said she felt there was discrimination by association, identifying what she saw as an issue about disability discrimination. As a carer to two disabled children, the claimant felt she was being treated less favourably than others who did not have such responsibilities.

[32]On 3 November a Stage Two outcome letter was sent to the claimant, and a separate letter of the same date dealt with the issue of flexible working hours. The letter noted that the claimant had decided against making a new flexible working request, and gave her 30 days’ notice that she may be required to work on other days, including Saturdays. On 7 November the claimant replied to reject this working arrangement, which she saw as a change to her contract, and said that no fundamental case to support the change had been made out. She was right to say that no formal detail had been supplied at this stage, though it did come later.

[33]On the same day, 7 November, the claimant also appealed against the Stage Two outcome from the sickness absence review.

[34]On 8 November the claimant raised a grievance. She relied on indirect sex discrimination, saying that, “as a mother the burden of childcare lies with me”. She also felt this was disability discrimination by association and she disputed the respondent’s view that under its Organisational Change policy this was classed as a ‘minor change’ rather than a ‘major one’.

[35]On 5 December a sickness review date occurred which could have acted as a trigger to go forward to Stage Three of the policy, but the Trust chose not to act on that pending these other issues being discussed, specifically the grievance.

[36]A grievance meeting was held with Ms Place, Interim Quality & Safety Lead, on 12 December where there was a broad discussion about the domestic challenges the claimant was facing. The respondent accepted then and during the course of this hearing that the claimant was in a difficult situation. For her part, the claimant told the respondent that she could not work even one weekend in a year, and expressed the reasons why she felt so strongly about that.

[37]The grievance outcome was sent to the claimant by a letter dated 19 December, agreeing that to her as an individual this was not a minor change but a major one because of her particular circumstances. While acknowledging that fact, it was felt by Ms Place that the request to work flexibly was a reasonable one on the Trust’s part. Ms Place also said she was not prepared to agree to the claimant's request that this issue of flexible working never be raised again. The claimant submitted an appeal against this grievance outcome on 23 December.

[38]On 26 January 2017 the claimant was invited to a Stage Three sickness review meeting. On 15 February, before this took place, the respondent provided a business case in writing to the claimant, setting out a number of factors which it felt supported its decision to review and alter the flexible working arrangements. Amongst these were the cost implications of paying enhancements to Band 6 and 7 staff at the weekends, the consequences of those staff not being available as often during the working week for two purposes: one to attend management meetings and the other to supervise in their capacity as more senior and more experienced members of the clinical team. The business case document and its appendices also referred to the impact on other team members, the example being given that others in the team would expect in principle to work one in three Christmases, whereas in the claimant's case it would be one in seven. It was noted that in practice the claimant never actually did work on a public holiday. Other matters mentioned in the business case included the patient-driven changes that had taken place, such as the earlier discharge of patients from hospital needing community nursing instead, and the deployment of intravenous injections in a way that would not previously have happened. This was all felt to be part of a safe and effective service delivery arrangement, and it came as part of an overarching need for flexibility in a modern and changing Health Service.

[39]All of that information was provided in the document dated 15 February, and after this the fourth in this series of meetings with the claimant took place on 23 February. This was the Stage Three sickness review. The claimant was again asked to work flexibly, doing her regular days but – provided that several weeks’ advance notice was given – sometimes working a different day including occasional weekends.

[40]The Stage Three outcome letter was sent on 24 February, advising the claimant that the Trust may move to Stage Four if she were unable to return to work by 22 March 2017. The claimant felt unable to return at any time while this issue remained unresolved.

[41]On 28 February the claimant attended a grievance appeal meeting with Ms Barbour, Community Manager, when there was again a full discussion about the difficulty of the flexible arrangements, and other possibilities such as the claimant seeking respite options were aired. The claimant was not willing to agree any such alternatives. By that stage she was making it known that she was contemplating legal proceedings, and mentioned that she had been in touch with ACAS because she was aware that a deadline was looming.

[42]The outcome of the grievance appeal was issued on 7 March, upholding the grievance in one respect, which was that to the claimant this was a ‘major change’, but nevertheless holding to the Trust’s position that under its Organisational Change policy it was ‘minor’. The grievance appeal outcome also set out that the contract of employment did not specify particular working days.

[43]A significant meeting then took place on 30 March with Ms Baxter, Community Manager, to discuss the issue afresh and the various options. Redeployment was discussed and because she feared that her employment would be ended if nothing were found within 12 weeks of going on the redeployment register, the claimant understandably rejected that. There was some discussion about the difficulties of her set working arrangements on others in the team, and on the respondent’s ability to cover the rota effectively. As the claimant later acknowledged at her dismissal appeal, the possibility of a dismissal on the grounds of ‘some other substantial reason’ was referred to and was explained to her. The claimant also mentioned redundancy or settlement; in other words, she was envisaging the possibility that she might be leaving her job. She had not prior to that meeting been given any information in writing to suggest that that was on the agenda.

[44]On 6 April the respondent’s HR department invited the claimant to what they described as a “short and final” meeting on 20 April to discuss her contract. Again, that letter did not say that dismissal might be an outcome from the meeting.

[45]The next day, on 7 April, the claimant issued an application to the Tribunal alleging indirect sex discrimination. The respondent said it received the claim form on 13 April, though there was no firm evidence that this was the date, but certainly the application was received after the respondent had already initiated the steps that later led to the decision to dismiss the claimant.

[46]On 20 April a further meeting took place between the claimant and Ms Baxter at which the claimant was told the respondent had no option but to dismiss her and re-hire her on new terms which required the flexibility which she felt unable to agree. The new terms would mean working 15 hours a week on Wednesdays and Thursdays but subject to the respondent giving notice of any different days to be worked. The claimant was given time to think about whether she would accept this offer, and chose not to.

[47]The dismissal letter was therefore issued on 26 April, noting the claimant’s decision to reject the offer and citing, amongst other things, the increasing pressure on the Trust to have greater flexibility on its rota. The letter also referred to a vacancy in Workington which the claimant had identified. This was for a full-time post. The claimant felt she might be able to work Wednesdays and Thursdays in this post with the respondent hiring another person to work under a flexible rota for the remainder of the week. The claimant was advised to apply for this if she wished, but decided not to. She felt discouraged by the fact that this post was also expected to require some flexibility. Other options, such as the possibility of working as a bank nurse, were also rejected by her.

[48]The claimant appealed against her dismissal on 8 May referring, amongst other things, to the lack of forewarning that her dismissal might be an outcome of the 30 March and 20 April meetings; expressing her unhappiness with the lack of consultation and the inadequate business case; and referring also to indirect sex discrimination and victimisation.

[49]The appeal was dealt with on 8 June by Ms Turnbull, Senior Network Manager, who treated it as a full re-hearing of all the issues. She discussed the problems caused within the team, without giving the claimant specific information. She invited the claimant to identify what she saw as any gaps in the business case, but the claimant was unable to refer to anything. There was some discussion about other aspects of the case, such as the cost implications of leaving the claimant's arrangements unchanged, and the absence of senior staff being available to work on weekdays. As far as the claimant was concerned, the only acceptable outcome was to make no change at all to her working arrangements.

[50]As for the procedural handling of the case, the claimant conceded at this meeting that she was generally happy with the level of consultation except for the absence of advance warning in writing about the dismissal option. That appeal being a full re-hearing by Ms Turnbull, any such unfairness was eliminated. All other options that the claimant might have taken to avoid her employment ending, other than the option she preferred, had been discussed and exhausted.

[51]The appeal outcome letter dated 19 June responded in broad terms to the issues raised by the claimant. Although it lacked detailed explanation of the underlying issues, the letter did refer to some of the detail in the business case, and fully took into consideration the claimant’s circumstances. The conclusion was that there was a clear business case, that alternatives had been explored, and there had been lengthy consultation.

[52]The claimant's employment therefore terminated on 19 July 2017, at which point she was paid her accrued holiday pay according to her contract, read with the respondent’s policy which limited her entitlement during long-term sickness to the entitlement under the Working Time Regulations.

[53]Had the claimant not been dismissed when she was, the Tribunal is satisfied that a Stage Four sickness absence review meeting would have taken place and as a result of this her employment would have ended by August 2017 at the latest. Conclusions Unfair dismissal

[54]Having heard the respondent’s evidence as to why it terminated the claimant's employment, the Tribunal considered whether this amounted to ‘some other substantial reason’ for dismissal under section 98(1)(b) Employment Rights Act 1996. This included consideration of the two limbs of that sub-section: firstly, whether the respondent’s reason was one of substance; and secondly, whether it justified the claimant’s dismissal.

[55]In this case the claimant’s dismissal came about because of the respondent’s decision to review and amend her working pattern so as to bring it in line with her colleagues’. Its reasons were set out in a detailed business case, summarised in paragraph 38 of this judgment. The organisational reasons for the review, coupled with the claimant's inability to meet the requirement for flexibility, led the respondent to decide that the needs of the service outweighed the claimant’s personal circumstances. The demand for more flexible care over increased hours and at weekends was the driving force behind the respondent’s actions. The respondent was aware of the claimant's very difficult circumstances and was able to accommodate those from 2008, but these gradually increasing demands on the service meant it was no longer possible to ignore the need for all employees to work flexibly. The Tribunal therefore accepts that there was a substantial reason which in principle could be a fair reason for dismissal.

[56]Whether the dismissal was actually fair requires an assessment of the respondent’s decision in light of section 98(4) Employment Rights Act, which means looking at all the circumstances of the case, the size and resources of the employer, equity and the substantial merits of the case. It is a question which goes both to the substantive fairness of the dismissal and also how it was handled procedurally.

[57]The most important procedural points about which the claimant complained were as follows:57.1 She was not forewarned in writing before the 20 April meeting that dismissal may be an outcome. For the respondent, Mr Smith very fairly conceded that the mere fact that there is no requirement under an ACAS Code to put that information in writing does not mean it was not a reasonable expectation, and the Tribunal agrees. Despite that, the claimant did in fact have some understanding that her employment may be in jeopardy even though she had not had anything in writing. This is because by the time of the 30 March meeting, when she raised the prospect of leaving with a redundancy payment or a settlement, it was clear that she could see the direction the situation was taking. Furthermore, an explanation was given to her of what the phrase “some other substantial reason for dismissal” meant. The claimant was therefore aware of the prospect of her employment ending prior to that decision being discussed towards the end of the process. Even if this was a significantly unfair procedural element, the Tribunal concludes that the appeal with Ms Turnbull corrected any such error by treating the meeting as a full re-hearing of the case. The Tribunal acknowledges the importance of being told in advance of a meeting that a person’s job might be in jeopardy, since part of the purpose is to enable an employee to take advice and prepare and be well represented. By the time of the claimant’s appeal against dismissal, all of those features were in place and the claimant was able fairly to respond to the discussion.

57.2 Lack of consultation was another of the claimant’s complaints, but by the time of the appeal against dismissal she did quite fairly concede that this was more about the lack of forewarning point dealt with above. Eight meetings took place in total, beginning with on 8 September 2016 and ending with the appeal against dismissal on 8 June 2017. The Tribunal concludes that this series of meetings, whether they took the form of sickness absence reviews, grievance meetings or discussions about the working pattern was conducted by agreement as a seamless sequence of discussions. They were rolled together into one series of eight significant discussions in which the claimant was able to, and did, fully participate. Accordingly, there was no failure to consult with the claimant; only a failure to agree.

57.3 The inadequacy of the business case formed part of the claimant’s argument about procedural unfairness. The Tribunal agrees with the respondent’s submission that there was no expectation of providing a written business case in the early stages of the discussions. A different outcome might have been reached if the parties had been able to arrive at an agreed outcome, making a written business case unnecessary. Following the early discussions the claimant was entitled to ask for more detail about the respondent’s reasons for changing her working pattern, and when she did, a detailed business case with appendices was supplied in February 2017. The underlying substance of those issues was not seriously disputed by the claimant, either at the time or during this hearing, with the exception of her argument that adequate cover could be provided on the rota within the existing team. During the course of this hearing the claimant took issue with other points, such as the relatively small value of the extra costs of Band 6 and 7 nurses covering weekends. However, she has never disputed that the complexity of the care, or the hours over which it was provided, had changed. At her later appeal against dismissal the claimant was invited to identify what information was lacking from this business case but was unable to point to anything.

[58]Those were the key procedural points raised during this hearing, and having reviewed them the Tribunal does not find that there was any procedural unfairness in the respondent’s handling of the case.

[59]This leaves the question whether the respondent’s decision to dismiss was fair and reasonable in all the circumstances, bearing in mind that a perfectly fair and proper procedure might be followed but the wrong decision might still be reached at the end of it.

[60]In its approach to this question the Tribunal has been mindful of the importance of not substituting its own views of what it would have done had it been facing this situation. The law recognises that different employers faced with the same circumstances might reach different outcomes. The Tribunal has to determine fairness in light of the band of reasonable responses test. In other words, can it be said that this employer’s decision fell within the band or range of decisions that a hypothetical reasonable employer might have arrived at? On the other hand, can it be said that this employer acted in such a way that no reasonable employer would have done? Only in the latter case could the Tribunal interfere and say that the dismissal was unfair. The Tribunal cannot reach that conclusion and we consider that the decision to dismiss was fair and reasonable in the circumstances.

[61]We recognise that a different employer might have been able to accommodate the claimant's family circumstances, and note that she has obtained new employment where the working arrangements permit her to work a fixed pattern, but that simply illustrates how the band of reasonable responses operates. The key point is that this employer decided it could not accommodate the fixed pattern, and that was a reasonable decision for it to take.

[62]It was not difficult to understand that the claimant felt unable to agree to alter her working pattern, but one of the safeguards in such a situation is that the employer can be expected to consider all reasonable alternatives before reaching the last resort of dismissal. We find that this employer did do that. It proposed that the claimant work non-standard days only occasionally (no more than once a month), and that she be given several weeks’ notice of any such departure from her usual pattern. It invited her to consider whether she could make other care arrangements for her children, such as occasional respite care. All these suggestions were rejected by the claimant (for which we make no criticism of her), but in light of the wider needs of the service, it was reasonable for the respondent to conclude that there was no other resolution to the problem.

[63]Even if we had found differently, the Tribunal is satisfied that having paused the Stage Four sickness absence review in late March 2017, pending the outcome of the internal meetings, the respondent would have moved forward with this in July 2017, and would have completed the Stage Four process by the end of August 2017. At that stage, the claimant would have been fairly dismissed on the grounds of her long-term ill-health. Automatically unfair dismissal

[64]The claimant alleged that her dismissal was automatically unfair under section 104 Employment Rights Act 1996, in that the reason was that she had asserted a statutory right. The statutory right relied on was the right to request flexible working under Part 8A of the Act. Had the Tribunal found this to be the reason (or principal reason) for dismissal, then it would follow that the dismissal was unfair without the need to assess reasonableness. In determining this question it is necessary to consider the provisions of section 104 and how this is connected to the statutory right in question.

[65]For the purposes of section 104(1), this is not a case where the claimant brought proceedings during her employment to enforce the right to request flexible working, which leaves only the wording of section 104(1)(b) to assist her argument. In other words, if the claimant asserted that the respondent infringed her right to request flexible working, then she could pursue the allegation that this was the reason for her dismissal.

[66]The only request for flexible working made by the claimant (which may or may not have been under the formal statutory rules applicable at the time), was the one made in 2008. That request was granted, and the respondent allowed the claimant to work part-time and on fixed days until the review in 2016 led to a change in its stance. It cannot therefore be said that the respondent infringed the claimant’s rights on that occasion. The claimant had no complaint about the outcome reached and made no claim to an employment tribunal at the time. In fact, she would have been unable to pursue a claim by virtue of section 80H(2) of the Act, since her application for flexible working was “disposed of by agreement” and under that section, “no complaint may be made” in those circumstances.

[67]There being no other exercise or assertion of the statutory right to request flexible working, the Tribunal does not accept that the claimant was dismissed for this improper reason. Even if such a right had been asserted, the Tribunal is satisfied that neither of the respondent’s witnesses, in particular Ms Baxter and Ms Turnbull as the key decision-makers, had any such matter in their minds or were influenced in reaching their decisions by any such statutory right. There was simply no evidence to support such a conclusion. Victimisation

[68]The claimant alleges that she did a protected act as defined by the Equality Act 2010, by issuing a sex discrimination claim on 7 April 2017. Bringing that claim qualifies for protection under section 27 of the Act, as the claimant was asserting her right not to be discriminated against. The Tribunal accepts that the respondent, and specifically Ms Baxter as the dismissing manager, had no knowledge that the application to the Tribunal had been issued when making the arrangements for the 30 March meeting to discuss the termination of the claimant’s employment. This is unarguably the case since the meeting was being arranged before the claim was even issued. The same can be said of the respondent’s actions on 6 April when it sent an invitation to the later meeting at which the decision to dismiss was reached. Ms Baxter could not have had that knowledge because the claim was not issued until after she took these steps. Ms Baxter may have been aware in general terms that the claimant had an intention to make a claim, and the Tribunal noted that the claimant suggested as much at her grievance appeal on 28 February with Ms Barbour. However, the Tribunal is satisfied that none of the respondent’s managers, including Ms Baxter in particular, had the prospect of Tribunal proceedings in their minds or that this played any part in the decision to dismiss. We reach the same conclusion in relation to Ms Turnbull’s decision to deny the appeal against dismissal.

[69]We accept the submission made by Mr Smith for the respondent to the effect that if the respondent had wanted to dismiss the claimant for these or any other improper reasons, it would not have gone to the lengths it did to try and achieve a positive outcome to retain the claimant as part of the team. There was no evidence or suggestion before the Tribunal that the respondent had any difficulty with the claimant or her work. On the contrary, it was evident that the respondent made significant efforts to try and retain her as an employee. Indirect sex discrimination

[70]The indirect sex discrimination claim arises from section 19 Equality Act 2010. This differs from the direct discrimination provisions of the Act in one important respect: there is no protection against discrimination by association under section 19. For the indirect discrimination provisions to apply, the protected characteristic relied on (sex) must belong to the claimant personally, and not somebody else. The Equality Act does not assist a claimant whose disadvantage arises from the protected characteristic (here, disability) of someone else. Although it was submitted on the claimant’s behalf that her protected characteristic was ‘being female with caring responsibilities’, this stretches the wording of the Act too far. There is no such protected characteristic, as the claimant’s sex and her caring responsibilities cannot be conflated in this way. The claimant can rely on her gender and then seek to persuade the Tribunal that this creates an indirect disadvantage to her as the primary care-giver, but this approach requires a more careful analysis of the statutory provisions.

[71]The analysis of indirect discrimination involves four stages under section 19, which the Tribunal considered. Firstly, did the respondent subject the claimant to a provision, criterion or practice (PCP)? The Tribunal agrees that it did, though we did not accept the description of the PCP that was put forward on the claimant's behalf. This was expressed to be “purporting to unilaterally vary the claimant’s terms and conditions by giving notice that [the respondent] will seek once a month to make the claimant work on a weekend at their discretion”.

[72]The law requires a PCP to be expressed in neutral terms from a starting point that everybody has equality of treatment. The question whether there is any detriment or disadvantage resulting from that is a separate consideration. The Tribunal finds that the PCP here was the respondent’s requirement that its community nurses work flexibly, including at weekends. That PCP applied to men and women in the claimant's team.

[73]The second stage is whether the PCP put women at a particular disadvantage compared to men. No evidence at all was put before the Tribunal to support this. On the contrary, all the claimant's female colleagues were able to meet the requirement as well as Mr Owens, the only man in the team. The claimant’s colleagues had children though none was disabled. During the internal discussions the claimant asked in fairly strong terms not to be compared with her colleagues, female or male. This was on the grounds that she was the only person in the group looking after children with disabilities. This illustrates perfectly the difficulty facing the claimant for her claim to succeed, which is that her children having disabilities is not a protected characteristic which she can rely on for herself in an indirect discrimination claim.

[74]The Tribunal had no difficulty in accepting that the claimant personally experienced a disadvantage, due to her personal circumstances. However, section 19(2)(b) of the Equality Act requires there to be group disadvantage as well as personal disadvantage. In the absence of any evidence demonstrating that women as a group were (or would be) disadvantaged by the requirement to work flexibly, the Tribunal concludes that this claim fails.

[75]The Tribunal went on to consider whether, if we were wrong in our primary conclusion, the respondent could justify the PCP. We concluded that the evidence (as summarised in the respondent’s business case) showed clearly that it was pursuing the legitimate aim of achieving flexible working by all community nurses in order to provide a safe and efficient service, and that it was proportionate to do so by applying the PCP to all members of the nursing team. Holiday pay

[76]The final claim was for unpaid holiday pay, but this was barely pursued at the hearing. The crux of the dispute seemed to be the claimant’s belief that she was entitled to holiday pay calculated by reference to her more generous contractual entitlement, whereas the respondent’s position was that the holiday accrued during long-term sickness absence was limited to the statutory entitlement under the Working Time Regulations 1998, which it had paid in full.

[77]The claimant was unable to provide evidence that she was owed anything more than the holiday pay already paid to her, and so the Tribunal was unable to conclude that the respondent breached her contract. Accordingly, this claim fails.

Findings of fact

[78]The policy says that the reasons for any changes will be discussed with employees at the earliest opportunity, that they will be given the opportunity to state their views and suggest possible amendments, and that implementation of the change would not usually be expected to take more than 30 days from initial communication, though management discretion may be used to alter the timescale in relation to an individual's personal circumstances where appropriate.

[79]The Organisational Change: Consultation Paper explains: ICCs aim to address the challenges of an ageing population and increasing demand on health and care services by providing more out of hospital care and empowering people to take control of their health and wellbeing. This will require new ways of working … Community nursing is a 24/7 service and this will not change. In order to standardise patient care across north Cumbria nursing teams will be flexible in order to meet local need and provide a service up to and after 2000 hours seven days per week. All staff will participate in rotas to cover these core hours. All staff need to be flexible and work with other teams … All staff will need to be flexible and to work with other teams to provide cover in order to ensure 7 day working in particular to support smaller teams and ensure fairness across North Cumbria.

[80]Appendix 2 – letter of 3 November 2016, confirming the changes to the claimant.

[81]Appendix 3 – Note on changes in hours and ways of working since 2010. This summarises the position in Cockermouth and the gradual changes to start and finish times in the preceding 6 years. It states: “Due to the increase in complexity and workload, since 2014 there has been a need for three staff on duty each day at weekends, 2 in the morning/afternoon and 1 in the evening. This has meant staff working more weekends, approximately 1 in 3”.

[82]The note goes on to deal with the increasing complexity of patient care. It states: “The dependency of patient need is audited by CPFT in the second week of every month using the patient dependency tool developed by Keith Hurst. As this has only been introduced in more recent years there is no data to compare the complexity and dependency of patient need now, compared to then, however the increase in complexity of patient care being delivered at home now, as opposed to a few years ago, has been pointed out” by the Royal College of Nursing and the Department of Health in 2013, as well as the Queen’s Nursing Institute in 2009 and 2014. The note quotes from and provides hyperlinks to those sources.

[83]Appendix 4 – Extracts from the Trust’s Business Plan 2016/17. This refers to the provision of seven day services in different areas of the Trust, with general community nursing providing services 24/7. It states: “We recognise the ambition set out in the NHS Forward View to expand the range of seven day services and deliver better integrated services to enhance the patient offer and will use our strategic partnerships to develop a safe, affordable and risk-based approach to the expansion of seven day services across Cumbria.”

[84]In the summary of Trust Objectives included in this appendix, one of the community objectives was identified as: “Develop and agree place based population health plans to deliver more care outside hospital aligned with success regime and better care-together programmes through Integrated Care Communities (ICCs).

[85]Appendix 5 – Blog addressed to staff, in which the Trust’s CEO acknowledged the impact of the transformation programmes and the associated uncertainty. The CEO referred to the business objectives having been set for 2016/17 and the fact that all staff should now have received a booklet explaining these. He directed everyone to look at resources available online and talk to colleagues about what the new business objectives would mean for them.

[86]The respondent's witnesses also gave evidence at the two hearings of this case about the practical difficulties underpinning the issues summarised in the business case. The Tribunal accepted this evidence as reliable and accurate.

[87]Giving evidence in 2018, Mr Owens, team leader in the claimant's team, spoke about the team in Cockermouth. He felt there was no need for a Band 7 nurse to work weekends, as the work could be covered by band 5 & 6 nurses. Weekend shifts generally involve more routine cases and fewer patient discharges, with only essential visits being carried out in the case of very ill patients. By contrast, most complex cases arise during the week. It is therefore more efficient to have more senior staff available on weekdays, when they can also supervise more junior colleagues with those cases. Weekend working also reduces the availability of managers to attend weekday meetings. The cost implications of weekend working were such that mangers would receive pay enhancements of 30% for working Saturdays and 60% for Sundays.

[88]Patients’ needs had become more complex since 2013, and by 2016 they were being sent home from hospital much sooner than previously.

[89]Band 6 nurses would work 1-2 weekends per month. Mr Owens felt that working one in four weekends seemed to be acceptable, but the respondent did not have enough band 5 nurses to cover that, especially after factoring in annual leave and sickness. There was a detrimental impact on the Cockermouth team, and some expressed their discontent with other managers. He did not tell the claimant about that, as the main reason for the review was about management efficiency and managers working weekends.

[90]During the consultation with the claimant Mr Owens spent time explaining how the demands of the service had changed, which was the point of their meeting on 8 September 2016. He explained the need for flexibility, though he did not have any particular documents to refer to. He did not have local evidence in front of him, but said it was evidenced by the Department of Health and the RCN. The claimant acknowledged issues about managers working weekends but told the respondent that “that was not her concern” and said she felt she was being harassed.

[91]In her oral evidence the claimant agreed that the respondent's questions about her mother-in-law and husband were about them trying to explore options. She said it was not her mother-in-law’s responsibility to look after her children. “As a mother and a nurse I was more capable than anyone else.”

[92]Salli Pilcher’s evidence in 2023 came from from a broader perspective, in relation to the Trust as a whole. As Associate Director of Nursing for Community Services, a post she has held since 2014, Ms Pilcher’s role is a strategic one with oversight of all community nursing services across Cumbria. She has been actively involved in the general changes affecting the Trust, including the drive for flexibility. The main changes which evolved over a 15 year period included a rise in complexity and patient numbers coupled with 24/7 care. The former Primary Care Communities gradually evolved into 8 Integrated Care Communities (‘ICCs’) which now deliver all community services. During 2016-17 many workshops took place with stakeholders about the introduction of ICCs, and largescale employee consultations followed in 2018. The changes evolved steadily over that 15 years. The respondent's aim was to achieve a seamless and patient-centred service. The focus of the strategic direction was to achieve higher levels of the population being treated closer to home, and reduce the number of beds taken up in acute hospitals. These changes were happening on both a national and regional level.

[93]The introduction of ICCs was a gradual change. The Organisational Change consultation paper was the conclusion of work started in 2016. It was looking ahead, but building on what was already in place. It was the 1st phase of ICCs but there had been consultation prior to that.

[94]The respondent was aware of gaps in community services for many years, such as the period between day and twilight and night nurses. This was a live issue in 2016- 17. Gaps in service meant some patients were waiting in discomfort or pain, for example with blocked catheters or end of life syringes bleeping with errors. Some patients would be admitted to hospital unnecessarily. The changes towards flexibility have eradicated this, and the respondent achieved around the clock continuity of services in 2018 as a result. It continues to seek improvements in the care provision at evenings and weekends so that resources are spread more evenly. Ongoing changes to increased weekend working are expected to take place so that this is far more regular.

[95]These changes to the rota have affected not only community nurses but also support staff, who have had to increase their flexibility to provide administration services 7 days a week. The same applies to therapeutic services. Across the whole Trust, no other community nurses experienced the same difficulties as the claimant to the point where they left their employment. One physiotherapist resigned in 2018 because of childcare difficulties, and she later took up bank work. There are approximately 550 clinical nursing and therapy staff in the ICCs across bands 2-7. Every Trust has or is moving to the same level of care, reducing the footfall at emergency departments and also hospital admissions, giving more options for patients to be cared for at home.

[96]In her witness statement for the 2018 hearing, the claimant accepted that the respondent had explained to her the increase in the complexity of cases. She did not dispute that more patients were starting to be discharged at weekends, and agreed there was now a requirement to carry out intravenous treatment which did not exist in 2008. Nevertheless, the claimant criticised the respondent’s handling of the business case, alleging that it had “failed throughout the process to outline their business case dated February 2017 in any clear and detailed manner, and only broadly and generically referred to the operational requirements and the need for greater flexibility on the rota”. She alleged it lacked detail by reference to members of her team who worked weekends, or why it was unsustainable for her not to do that. She criticised the fact that it took six months to produce, asserting (incorrectly) that it never mentioned the introduction of ICCs.

[97]The claimant conceded in 2018 that she had not raised any criticism of the business case at the time, the first such criticism being in the appeal letter. On re-examination when asked to explain why not, the claimant said, “I suppose because the meeting was about my sickness, I don't really know. I needed time to process the information”. When asked whether she had been shown any evidence about the greater demands on the service, the claimant said she had not been shown any data, “just caseloads etc”.

[98]Commenting on the respondent's aim of providing a 24/7 service to patients, the claimant said that no such provision existed within her old place of work. She accepted that the respondent had told her at meetings that there would be changes in the service, but she said nothing changed in her time after the hours were previously extended. She disputed that it was going to change going forward.

[99]In her oral evidence in 2022 the claimant accepted that the business case applied across the Trust and not just her team. She also accepted that part of the rationale involved the increasing complexity in patient care. While accepting there had been an increase in complexity, she maintained that changes had already taken place prior to 2016, and held to the view that there were no new changes taking place in the future. The claimant also said in evidence that: ‘Requiring the other members of the team to work a marginally increased proportion of weekends in order to reasonably adjust to my circumstances is not a major inconvenience or detriment to them’.

[100]In her second witness statement prepared for the remitted hearing, the claimant again agreed that there had been changes in the role of community nurses since 2008. She said: “However, longer working hours, an increased caseload and an increase in clinical skills were changes that had been implemented a number of years prior to my dismissal. My current job role and responsibilities are no different to what they were in 2016.”

[101]In her oral evidence in 2022 the claimant accepted that Mr Owens as a band 7 nurse was needed in the hospital on weekdays, but she felt there was no need for a band 7 to be on duty at weekends because there were plenty of others to cover. She felt that the two band 6 nurses could share the weekend working, and between them there was ample to cover each weekday. The claimant conceded that if she and Mr Owens were taken out of consideration, that would leave only 9 colleagues available to work weekends in the Cockermouth team, working one in three weekends. If annual leave were factored in, it could occasionally be more than that, but the claimant felt that band 7 nurses could help provide cover.

[102]In her second witness statement the claimant expressed the view that band 5 community nurses at Cockermouth were very experienced and required minimum supervision. She challenged the notion that band 6s and band 7s needed to be available to supervise.

[103]When asked during evidence whether the respondent was entitled to ensure that work arrangements were fair for other staff, the claimant responded: “It is acceptable to listen to what others have to say but there was nothing about how I felt. I can't understand why others’ opinions were more important, given that I had special circumstances”. She added “I suppose they have to look at fairness for all staff, including me”.

[104]When asked about better integrated services as part of a national initiative, the claimant acknowledged that that was the government's plan, but said there was “nothing specific about why they wanted me to do what they wanted”. She acknowledged that ICCs were part of the respondent's objectives at that time, but claimed it was not something she was made fully aware of, or how it affected her. The claimant accepted that the Trust objectives for 2016/17 did form part of the business case but said she did not have any specific information about ICCs, and was not part of any consultation about ICCs.

[105]The claimant acknowledged she was told there were difficulties covering the rota effectively if she had set days, and that this was not challenged at the time of the ‘options meeting’ on 30 March 2017 by her or her union representative. The union representative in fact made reference to the effect of ICCs being introduced, as she had been involved in talks about it. She agreed that there did not appear to be any challenge at the time of the discussions to the need for greater flexibility.

[106]In her second witness statement, prepared for the remitted hearing, the claimant agreed that changes had been taking place with the service, as part of patients being discharged earlier and requiring more care in the community. She accepted that that was “part of the ever evolving healthcare system.” She agreed that: “Patients were being discharged earlier and that administering IV antibiotics became a normal clinical skill in the community setting whereas in the past it was always practised in an acute setting. However the criteria for requiring a community nurse visit became much stricter than before. I would agree that caseload complexity has changed regarding care provided but caseload numbers have not increased”. Chronology of events

[107]The review of the claimant's flexible working was initiated by Gillian Baxter, Community Manager, who asked Michael Owens to carry out the review in light of the latest changes in community nursing. The subject of the claimant's working pattern had recently been raised by a member of the Cockermouth team, who emailed Ms Baxter and Mr Owens on 11 August 2016 requesting a further review of the claimant's hours, which had already been discussed that year. The email identified some difficulties within the team: “It is becoming increasingly difficult to manage the off duty especially during the summer holiday time when we try to ensure people are given weekends off prior to annual leave. Last week there were three people on annual leave and we had a day of sickness and the fact Katy and myself had to work consecutive weekends meant we were missing for four days during the week which proved extremely demanding and stressful. As Gemma never works a weekend others are having to work two per month which seems very unfair. She also only ends up working one in 7 Christmas days while the rest of us is probably every 2/3 years and she is able to have every public holiday off during the year. This is creating resentment from other team members and personally I don't feel it sets a good example of fairness. Whilst I am aware Gemma finds the balance between home and work sometimes difficult to manage this is something she has chosen to do and surely after seven years we need to review things.”

[108]The meeting between the claimant and Mr Owens took place on 8 September 2016. The minutes record: “We explored the need, for service reasons, to review your flexible working arrangement which is currently in place and whereby you work Wednesday and Thursday each week. This is open to annual review around appraisal time as per the Flexible Working Policy. As explained, due to service needs, we require you to work the occasional weekend rather than mid-week and anticipate that this will result in weekend working no more than once a month, and in some cases will be less. With the rota being drawn up in advance you will always have plenty of notice.”

[109]The claimant responded on 13 September stating, “I made it clear several times in the meeting that I will not be considering alternative arrangements as I have none available to me”. She said, “Weekend working is not an option for me”.

[110]From the point of this meeting onwards, the respondent sought to explore options available to the claimant, and a possible compromise; a theme which appeared consistently in the many subsequent discussions. The respondent's objective was to explore whether or not the claimant could make some arrangements with her mother-in-law or husband to provide childcare on the occasional weekend, with plenty of notice. The claimant had little to say in response to questions, other than to maintain her position that no changes of any kind could be contemplated.

[111]Karen Blyth, District Nursing Sister, stood in for Mr Owens in a further discussion with the claimant on 3 November. On this occasion the claimant alleged discrimination on the grounds that she had children who were disabled and there was a discussion about discrimination by association. The claimant felt her existing flexible working arrangement could not be reviewed for the future. She was adamant that even with notice she could not work weekends or any bank holidays. It was not possible to make arrangements for her husband or mother-in-law to look after the children. Whenever Ms Blyth tried to make suggestions about flexibility, the claimant interrupted by saying “No”. She did not accept that there was any impact on her colleagues. The claimant acknowledged that the respondent told her it was unfair on other staff for her not to work weekends. Her response at this meeting was that it was not her problem, because she felt her employer should be there to support her as well.

[112]The same day, the respondent wrote to the claimant giving notice under the Organisational Change and Pay Protection Policy that she “could be asked on occasion to work an alternative day of the week, including a Saturday”. The letter referred to their meeting when the claimant was: “… asked to consider what adjustments you would need to make in order to be available to occasionally work on a day other than a Wednesday or Thursday, no more than once a month and in some cases less with the rota being drawn up in advance to give you plenty of notice.”

[113]The claimant did not agree to any such change and in a reply dated 7 November she stated: “When I am in a position to return to work [from sick leave] I would only be able to do so to my longstanding contractual work pattern”.

[114]In her letter the claimant also expressed concern about being moved to a Stage 2 Sickness Absence meeting, and reiterated her childcare difficulties. She said, “My husband works some weekends”. She did not elaborate on how often that happened, or why this meant she would not be available to work any weekends at all. The claimant also said she was feeling harassed by the respondent's questions about her childcare, and why it was not possible to make arrangements with her husband or mother-in-law.

[115]At the grievance investigation meeting with Amanda Place (Interim Quality & Safety Lead) on 12 December, the claimant was asked whether her mother-in-law would be able to help out on the occasional weekend. The claimant replied: “The kids aren’t in school on a weekend. I can’t expect my mother-in-law to give up her weekends so I can go to work …”

[116]At this meeting the respondent again explored what other options might be suitable, by which both parties would demonstrate some movement on their position. For example, the claimant was asked whether she might manage working one in eight Saturdays. She replied: “No, it doesn’t matter whether it’s every week or once a year it’s not necessarily something that is going to be manageable for me and my family. I need to know that things are going to be sustainable and going to work…”

[117]Her union representative twice suggested that the claimant might be able to help out in a couple of months’ time. The claimant did not contradict that statement, nor did she elaborate on the possibility of changes in the near future. On the contrary, she wanted her current arrangement to stay in place forever.

[118]Ms Place recognised the claimant's difficulties, but could not understand from the claimant why her husband or mother-in-law could not assist at weekends. When discussing the possibility of the claimant working 1 in 8 weekends, the claimant said that not even one weekend a year was manageable. In fact, she wanted written confirmation that she would never again be asked to work flexibly. Ms Place was conscious of the fact that the service required 24/7 care, and that all staff had to work more flexibly than in the past. Reduced staff numbers meant there was no longer the luxury of accommodating personal preferences. Added to this, the demand for the service had also increased. She considered the balance of the claimant's needs against the respondent's, and decided it did not tip in the claimant's favour because it was a reasonable request to work more flexibly. Ms Place took into account that all Trust employees are required to be flexible, and she knew of no one working set days.

[119]Ms Place turned down the claimant's grievance and gave her decision in a letter dated 19 December. On 23 December the claimant submitted an appeal.

[120]The claimant attended a Stage 3 Sickness Absence Meeting on 23 February 2017 at which the respondent again explained its position: “We are trying to be about give and take, we don’t want to lose you as a member of staff and the Trust would want to be flexible, but this is just why we are looking for a little bit of wriggle room. I appreciate where you are coming from, but there is no movement from you.”

[121]This reflected the reality of the parties’ respective positions, in that the respondent was not seeking to require the claimant to be as flexible as her colleagues, but was prepared to reduce the weekend commitment to a few times a year, with plenty of advance notice. It was correct to say there was no movement from the claimant.

[122]The grievance appeal was dealt with by Jennifer Barbour (Community Manager Carlisle) at a meeting on 28 February. Her decision took account of the need to balance the claimant's childcare needs against the respondent's service delivery responsibilities. She felt the claimant did not accept that her colleagues had a problem with her working pattern. The claimant said her husband worked Monday to Friday but could not look after the children on either a Saturday or a Sunday. Ms Barbour determined that the proposed change to the claimant's working pattern was a minor one under the FW Policy. She had knowledge of the changes taking place in the complexity of community care. She was aware from reports provided by district nurses that the acuity of needs had risen, there was an aging population especially in Cumbria, and there were shorter stays in acute hospitals.

[123]At this meeting the claimant was asked about the childcare arrangements in place when she worked until 10:30pm. She explained that her mother-in-law picked the children up from school and stayed until her husband returned home. She would help get the children ready for bed. When asked whether her mother-in-law could assist on the occasional weekend, the claimant said: “… I don’t know if I can expect her to look after them on her days off…”.

[124]By a letter dated 7 March the claimant’s appeal was turned down. In explaining her decision Ms Barbour referred to the Business Case, which outlined the need for flexibility “due to the need to deliver patient care 7 days per week”.

[125]The next meeting the claimant attended was with Ms Baxter on 30 March 2017 to discuss the options available (‘the options meeting’). The respondent was concerned to ensure a safe, efficient and effective service delivery. The following possibilities were discussed:• redeployment to a different role more in line with childcare arrangements

• working across different community teams predominantly on a Wednesday or Thursday where possible, but working some other shifts to support the service, with an agreed period of notice

• occasional arrangements for weekend working with an agreed period of notice

[126]The claimant neither accepted any of the above options nor put forward any suggestions of her own. She was not prepared to do bank work as this was not guaranteed. She intimated that a Tribunal claim would be made and mentioned a settlement agreement, a suggestion rejected by the respondent.

[127]At this meeting the claimant maintained that she could only work Wednesdays and Thursdays as she relied on her mother-in-law. The reason she could not rely on her husband at weekends was that it was “far too much” for him. He worked in an HR role at Sellafield. She also rejected the idea of working over bank holiday weekends, which could give her husband time to recuperate. The claimant explained that her mother-in-law looked after the children during school holidays and said it was “a nightmare”.

[128]Ms Baxter was aware of some unhappiness in the claimant's team with her set working days. Other team members felt they were taking an undue share of the more unsocial hours, especially weekends and bank holidays. There was also a drive to reduce the cost of Band 6 and 7 staff working weekends, and to ensure they were available for weekday management meetings. Weekend working for those bands sometimes resulted in insufficient senior cover during the week.

[129]The claimant had expressed interest in a full-time community nursing role in Workington, providing she could continue working her set days as part of a job share. This would be on the understanding that the other employee would work the remaining weekdays and provide cover whenever needed at weekends and bank holidays. The claimant spoke to Ms Eagles in HR, who explained that the respondent's preference would be for someone who could fulfil the hours full-time, and because the role was a community nursing one, it was likely to have similar requirements for flexibility. She suggested that the claimant contact the relevant manager to see if a job-share could be accommodated, but the claimant neither did that nor applied for the post as she felt discouraged by Ms Eagles’ comments.

[130]The claimant’s union representative accepted that community nursing had changed in recent years and that the need for flexibility was likely to become greater with the introduction of ICCs, but the claimant wanted to stick to her days and never have the subject of changes to her working days raised again. The meeting therefore ended with an impasse.

[131]Ms Baxter’s evidence, which we accepted, is that “facts and figures are out there”, such as the length of hospital stays and caseload numbers. Such data is held by business analysts. Some would be presented in monthly performance reports. A snapshot could be pulled from the system. However, that level of detail would not normally be provided in a business case about flexible working. In the course of the consultation exercise facts and figures were not referred to, because there was a general acceptance that the changes to community nursing were taking place. There were multiple local and national documents which linked the increasing care in the community, including more complex cases. This was common knowledge.

[132]In reaching her decision, Ms Baxter considered that all factors in the case were considered, making it an exceptionally difficult and fine balancing act. The cost saving would have been around £100 for a band 6 and £200 for a band 7, ie around £2,400 over 12 weekends. As a budget holder, she was responsible for delivering the service in the most cost-effective manner. It was only one of several factors. Two members of staff had raised concerns. It being summer holiday time, this was leading to significant gaps in senior cover during the week. There were also possible safety implications due to the lack of senior staff during the week, for example if complex decisions had to be made.

[133]The claimant’s concern by this time was the lack of certainty, and being unable to choose her working hours or days. She felt that the respondent was trying to appease one or two other members of the team: “who I believe had raised the issue of me working one Christmas Day in seven years and how they felt this was unfair. When you take into account the reasoning behind my working pattern, which was to guarantee childcare, then I struggle to see without any evidence provided by the respondent the need for the increase in flexibility”.

[134]The difficulty of permitting the claimant to work set days was expressed by Ms Baxter when she said, “set days makes it difficult for others on the team and for covering the rota effectively…”. The claimant’s union representative acknowledged the context, acknowledging Ms Baxter’s statement that community nursing had “changed in a major way over the last few years” with a “need for greater flexibility”. The union representative said: “I have been involved in loads of consultations and then there will be the effect of the ICCs coming in.”

[135]The claimant was asked about childcare arrangements during school holidays and confirmed that her mother-in-law looked after the children.

[136]The full discussion at this meeting again demonstrated that the respondent was seeking to identify a mutually agreeable way forward, recognising the claimant's childcare pressures but looking to her to reciprocate with a little flexibility on an occasional basis, and with plenty of advance notice. Ms Baxter asked the claimant whether she had any support from social workers, to which she replied: “I know where you are coming from but I cannot agree to anything other than working on a Wednesday and Thursday.”

[137]By the conclusion of the 30 March meeting, it had become apparent that all options had been exhausted. The respondent had tried to explore a variety of ways to support the claimant in working a little more flexibly, but the claimant remained adamant that she could not agree to any change whatsoever. She did not put forward any other potential solution to the problem.

[138]On re-examination the claimant was asked about the ‘confusion’ she felt about what flexibility was being requested, and how this impacted on her response. She said: “My response was the same all along. I told them I could only work Wednesdays and Thursdays and that was never going to change at that time. Regardless of how many times they changed what they were asking, I wasn't able to do it”. She said that if she had had more information from the respondent, the options would be the same. She was prepared to work wherever they could find a role but only on Wednesdays and Thursdays.

[139]On 20 April a “very short and final meeting to discuss your contract” took place with the claimant and Ms Baxter. When the latter repeated the request for her to be available at weekends, she “reiterated that it was not possible due to having to care for my two severely disabled children”. The claimant also emphasised that she had “repeatedly asked the respondent to stop comparing me to my colleagues as none of them are in a situation like mine”. There being no agreement on the way forward, the respondent terminated the claimant's contract and offered her ongoing employment on new terms which required her to work more flexibly. The dismissal letter dated 26 April recorded the fact that the claimant had decided not to accept the offer of new terms, and so the dismissal took effect.

[140]Ms Baxter’s letter to the claimant of 26 April 2017 states: “You were advised by [Sandra Eagles] to apply so that follow up could take place with the recruiting manager. The onus would have been on the recruiting manager to consider and decide whether or not these specific days of work could be incorporated. It is acknowledged that, unfortunately, only being able to work on a Wednesday and Thursday was likely to have been a sticking point. The same set of circumstances apply as per the business case already put to you whereby community nursing now needs more flexibility in terms of fulfilling the rota in order to deliver patient care”.

[141]In evidence the claimant was asked about the fact that she had never said her mother-in-law had refused to help with the occasional weekend. In reply she said she had discussed it with both sets of parents later on, and all of them said they were not prepared to help at weekends. At the stage of facing a possible dismissal, she had not discussed it with them.

[142]Elizabeth Turnbull (Senior Network Manager) dealt with the claimant's appeal against dismissal at a hearing on 8 June. The claimant said she knew that nursing had changed but she did not see why her hours could not be accommodated. She was asked what further detail she expected to see in the business case, and said she felt there were enough staff and hours to cover the workload. The claimant wanted a settlement, or she would go to Tribunal.

[143]By this time, numerous meetings had taken place discuss the claimant's working patterns. She acknowledged that she knew dismissal could be an option. She could not identify what other options she believes the respondent should have come up with to avoid this. The claimant did not ask for any further information about the rationale, as she was well aware of the reasoning behind it.

[144]At the appeal hearing the respondent said that: “The current situation is no longer sustainable. Although not an ideal position to have less weekend cover from yourself if agreed it would have gone part way to helping the service.”

[145]When told that the respondent was looking for ideally one in four weekends with reasonable notice, the claimant replied that she would “not even work one weekend per year”. She did not by this time wish to return to working in Cockermouth. The claimant explained again that she could not work weekends as it would place too much strain on her husband, she could not change days as it was unfair on her mother-in-law. She was unable to access other childcare because of her children’s medical conditions.

[146]Ms Turnbull was aware that safety concerns had been raised about senior staff not being on duty during the week due to providing weekend cover. She believed that the claimant working an occasional weekend would substantially address that. She was mindful of the fact that senior staff cost more at weekends, and an annual cost saving of £2,400 was not a small amount in circumstances where the service was closely monitored on budget, on a weekly basis. Furthermore, senior staff were needed during the week for one-to-one meetings (such as supervision or appraisals), for training, and to handle the normal challenges that arise. These might include clinical meetings, liaison with GPs, or urgent incidents which a more junior employee may not be able to deal with

[147]The rationale behind her decision on the appeal included multiple factors, including costs, changes in the caseload across the Trust, the need for flexibility and the role of band 7 nurses. Balanced against this was the fact that she did not consider the claimant's explanation that her husband could not help at weekends to be wholly convincing, nor did the claimant explain why her mother-in-law could not assist on other days. She felt that the information in the business case was sufficient to explain in a condensed way why the changes were required. The balance was tipped in the respondent's favour because of factors set out in that document. The overall context was the knowledge that a lot of change was taking place in Cumbria in relation to service needs, ICCs were being introduced and services were being developed.

[148]On 19 June 2017 the claimant's appeal was turned down, bringing the internal procedures to a close. Following her dismissal, the claimant obtained bank work with the Trust working only Wednesdays and Thursdays. In July 2018 she was appointed to a new permanent role at Whitehaven hospital, working the same fixed pattern. This differed from the community nursing role in that it is a service for people having chemotherapy and operates between Mondays and Fridays.

[149]By the time of preparing her second witness statement, the claimant was continuing to work bank shifts on Wednesdays and Thursdays with her mother-in-law looking after the children. Although she was previously adamant that this was not an option, in her statement the claimant says: “I have done the odd shift on another day in the week but I have continued to stick with my usual working pattern because of the surety I have with childcare arrangements.” The claimant's childcare difficulties

[150]The claimant was questioned during evidence about the arrangements for caring for her children. She said her husband works at Sellafield as a business analyst, working Monday to Friday 9am to 5pm, “mostly or thereabouts”. She said, “My husband is at work all week, he has to help in the morning and at night. It's 24/7.” When asked by the Tribunal what the difficulty was with her husband providing childcare, the claimant said that at the time the children’s needs were “too much” for him on his own, largely due to their daughter’s severe disabilities. “It was not a safe option. He could not do it for a full day. It was not that he wasn't capable, but they were very dependent. He'd be tearing his hair out.”

[151]When the Tribunal asked about the claimant's mother-in-law being able to manage the care on her own, the claimant agreed but explained that the children were at school for a portion of that time. From 5pm both her husband and his mother were around. In the school holidays her father-in-law would help depending on his shift patterns. At this stage of the evidence, the claimant said she had discussed weekend caring with her mother-in-law as well as her own mother and they said they did not want to do that. This was the first time the claimant's mother had been mentioned. When asked whether her mother-in-law could recuperate on Wednesday and Thursday if she had provided weekend care, the claimant said she could, but “that was not her choice”. She said, “As far as I'm concerned, the children are my responsibility and I can't expect the grandparents to do any more.”

[152]The claimant was asked about her mother-in-law helping at weekends. She first said that was not correct, though clarified that her mother-in-law did help by providing respite care at the weekend, “maybe once a month”. Otherwise, she and her husband managed the children together most of the time. Submissions for the respondent

[153]Mr Brittenden began by submitting that the claimant had focussed on the information she said was not disclosed, but she had not engaged with the evidence of the difficulties faced by the respondent. Her criticisms were abstract, and no solutions were put forward.

[154]Following Essop it is a question of fact for the Tribunal whether the justification test is made out. It is for the Tribunal to weigh the reasonable needs of the Trust against the prima facie discriminatory effect of the PCP, and to make its own assessment of whether the former outweigh the latter. The respondent does not have to show it was impossible to accommodate the claimant. He said there are powerful factors in business case and during this hearing the claimant did not identify how they could be overcome. She has not identified any less intrusive measure. Having regard to all the alternatives suggested to the claimant, all of which were rejected, dismissal and re-engagement was a proportionate means of achieving the respondent's legitimate aim.

[155]The respondent's business case makes clear that there are two strands to the proportionality exercise:• The need for community nurses to work flexibly generally; and

• This need, having regard to the circumstances applicable to the Cockermouth Team.

[156]Both elements are aligned and featured in the business case, which refers to the needs and requirements of the Cockermouth Team and the need for community nurses to work flexibly. Both are permissible considerations. Although the claimant now seeks to criticise the business case, she never once asked for further information to be provided, or questioned the contents. No criticism of it was made in the witness statement for the substantive hearing in 2018.

[157]Applying Hardy and Hansons v Lax, the Tribunal is required to have regard to all of the circumstances, including the reasonable needs of the business, the claimant’s response to the application of the PCP, and what was said in consultation.

[158]The business case referred in terms to the difficulties affecting the staff in the Cockermouth team. It said that the claimant had been asked for flexibility in order to enable the Trust to provide “the required level of service to patients”. There were also considerations of parity and fairness between colleagues. The flexibility was required in order to “maintain safe and effective service delivery to patients whilst maintaining the health and wellbeing of the other members of the team”. The Business Case specifically sought to afford the Claimant more favourable treatment than her colleagues – “… The Trust is not asking her to be as flexible as her colleagues…”

[159]Gillian Baxter referred to the burden of staff working unsocial hours at weekends/bank holidays; the cost of band 6-7 nursing staff working weekend and paid enhancements; the fact that it was not operationally viable for managers not to be present for two days during the week if they worked weekends; and the changes brought about by the ICC model. The business case also refers to wider changes to community nursing, by reference to the increase in complexity of patient care being delivered at home: “The general direction of the Trust is that we [are] moving towards a point where staff will be required to work more flexibly within a challenging financial climate, trying to keep patients out of hospital”.

[160]Salli Pilcher provides further evidence about the general changes, which was a continual process of “evolution”. The changes were discussed during the consultation process without dissent from the claimant or her union representative. Other contemporaneous documents referred to the introduction of ICCs. The Organisational Change: Consultation Paper explains the rationale and the need for all staff to participate in flexible working arrangements across Cumbria.

[161]The central aims are best described in Ms Pilcher’s witness statement: … achieving a seamless service for patients across all of the ICCs which is patientcentred, provides services without gaps, is equitable for patients and responsive to their needs across a seven day a week service.

[162]The Trust’s aims are underpinned by the fact that there were “gaps in services” for many years resulting in patients suffering at home or being taken to hospital. Gaps in service provision were a real concern in 2016-17.

[163]Mr Brittenden submitted that the Tribunal should also have regard to what the claimant said during the consultation process, rather than what has been raised after the event. Ther respondent provided explanations as to why it had a genuine need for greater flexibility. It met the claimant on numerous occasions with the genuine intention to seek agreement. The respondent was not intractable in its position, but sought to reach a workable compromise.

[164]The impact on colleagues would be significant, with 8 band 5 nurses in Cockermouth working a weekend around once every 2 weeks, after factoring in annual leave. After some pressing (the question was put 3 times), the claimant accepted that the respondent was entitled to take into account the fair and equitable distribution of work: “I suppose they look at fairness to all staff, but there should not be anyone prioritised over another”.

[165]The claimant's position remained intractable. The respondent asked about other childcare options available to her. The claimant did not actually say she had no other childcare options to be able to work an occasional weekend. Even if her husband “worked some weekends”, that did not prevent the claimant from working an occasional weekend. The claimant said she “did not know” if she could expect her mother-in-law to look after the children on her days off. She accepted in crossexamination that at no point did she tell the respondent that her mother-in-law had refused to help out at weekends. The answers given by the claimant in response to questions from the Employment Judge showed that her mother and mother-in-law shared the childcare once a month to give her a night off.

[166]When asked whether the claimant's mother-in-law could provide childcare on an occasional weekend instead of her normal weekdays, the claimant did not accept this as an option. The answers given to the Tribunal sit uncomfortably with the claimant's intractable position to the effect that: “No, it doesn’t matter whether it’s every week or once a year…”.

[167]The Tribunal's first judgment recorded the fact that “… the Claimant conceded at this meeting that she was generally happy with the level of consultation …” apart from the final meeting. And the Tribunal found that “… there was no failure to consult with the claimant; only a failure to agree”. This rather jars with the suggestion now belatedly made by the claimant that the entire process was a “sham” and that she was “never consulted with in any meaningful way”, as stated in her witness statement.

[168]Perhaps the most significant feature in this case is that at no time did the claimant or her union representative table any practical suggestions or solutions as to how the Trust’s needs/concerns could be addressed while enabling her to remain working fixed days. Consultation is a two-way process. If one party offers no suggestions and isn’t willing to compromise, applying Hardy and Hansons v Lax, that must be a salient factor in analysing this case.

[169]The information in the claimant’s witness statement derived from Freedom of Information requests does not assist the Tribunal for the very simple reason that it does not demonstrate that staff worked set days, or that they did not work weekends. The RCN survey which the claimant introduced in her supplemental witness statement is also bereft of forensic value because it is dated March 2022, and reflects the national position but says nothing about Cumbria.

[170]In summary, applying Hardy and Hansons v Lax, the Trust’s position is that it had a genuine need both at a Trust level, and in relation to the particular requirements of the Cockermouth Community Nursing Team, for community nurses to work flexibly. The respondent sought to explore every conceivable way of meeting its operational requirements and at the same time tried to make allowances for the claimant's situation, but ran out of options. No alternatives were countenanced or advanced by the claimant or her union representative. The Tribunal was also invited to place significant weight on the fact that although claimant and her union representative had the Trust’s business case since 15 February 2017, no real challenge was made to any of its contents. At no point was it ever subject to analysis as to why the facts or assertions were in any way incorrect. In those particular circumstances, the Trust was entitled to proceed on the basis that there was no challenge to it.

[171]Given her experience, Ms Pilcher is well-placed to provide useful comment. In response to questions from the Judge about the claimant’s requirement to work set days, she provided transparent and truthful evidence. In re-examination, she commented on the points made by Ms Baxter at the appeal on 8 June 2017: … One of the implications of GD not working weekends is that other staff are having to work additional weekends including Band 6 and 7 which has a cost implication to the trust. We are trying to get away from Band 7’s not working weekends to focus on their management role. There are significant periods where we have no staff on during the week because they are on days off due to having to cover weekends. This isn’t ideal for safety reasons. … We would want a senior member of staff on shift but last year it became hard to cover the rota, which leads to safety implications…

[172]Ms Pilcher was clear that it was in no sense feasible for the claimant to work fixed days without weekends: Band 6 and Band 7 have a whole host of nursing responsibilities. They have strategic oversight, manage the caseload and supervise all staff. The management of case loads, the small numbers of the team, and significant gaps in the working week… There is a greater need to collaborate with GPs and social workers. If the impact of the Claimant working fixed days meant that we did not have a Band 6 or 7 during the week that would be a considerable concern. Unfair dismissal

[173]If the Tribunal accepts the justification defence, then the unfair dismissal claim must fail for the reasons already given in the Tribunal's first judgment. It is only if the Tribunal finds that the reason for dismissal amounted to indirect discrimination that the Tribunal would have to revisit the finding that dismissal fell within the range of reasonable responses. Conversely, if the Tribunal rejects the justification defence, a finding of indirect discrimination does not make a dismissal necessarily unfair: City of York Council v Grosset

[2018] IRLR 746

. Submissions for the claimant

[174]Ms Berry reminded us that the respondent bears the burden in respect of all four questions in Hardy and Hansons v Lax. The question is whether the rule is justified, rather than its application to an individual. It is important to look at the PCP itself, applicable to all community nurses. She criticised the lack of evidence to support the respondent's aims, and said the PCP cannot be justified on evidence about the Cockermouth team only. No one in the pool of 278 community nurses except the claimant was unable to comply with the PCP. The respondent has not monitored impact in line with Essop.

[175]Ms Berry suggested that the respondent had abandoned the aim related to cost savings, though this was still relevant to the proportionality question. As for the Rostering Policy, there is no evidence that “agreed safe staffing levels” had been breached to the extent that all community nurses had to work flexibly. It was not stated in the Trust’s business case, or by Mr Owens or Ms Baxter in their witness statements. Ms Turnbull’s rationale for dismissing the claimant's appeal related to two concerns with managers working the weekend: “cost, and it is important managers are there, particularly Monday to Friday, to deal with management issues, training issues and the normal challenges that arise”.

[176]Ms Pilcher stated in response to the Tribunal's questions that “in a 24/7 [service] it becomes increasingly difficult to accommodate [flexible working] requests. It is not insurmountable, but depends on pressures and requirements of the team”. The situation is therefore more nuanced on the Trust’s own evidence and the blanket PCP they operated which required all community nurses to work flexibly, including at weekends was too far reaching.

[177]Ms Berry’s submissions went on to set out in some detail five particular points in support of the claimant's position:• Incorrect analysis – dismissal and re-engagement

• The pleaded aim of balancing workload amongst the team and reducing the cost of having to use band 6 and 7 registered nurses on a weekend

• The PCP is not appropriate to achieve the legitimate aim of providing care to patients in the community 24/7

• The PCP goes beyond what is necessary to achieve the legitimate aim of providing care to patients in the community 24/7

• Proportionality in the sense of the balance between the discriminatory effect of the PCP and the legitimate aim

[178]The first point was that, contrary to the respondent's pleading, the claimant's dismissal and re-engagement is not the PCP. The question is whether it was necessary for all community nurses to work flexibly, including at weekends in order to provide care to patients in the community, 24 hours per day, 7 days a week and to balance workload amongst the team and reduce the cost of having to use band 6 and 7 registered nurses on a weekend.

[179]The second point was that respondent's pleaded case referred to the Cockermouth Community Nursing team , but the respondent has failed to lead evidence to support this position in relation to the wider pool. Evidence that relates solely to the Cockermouth Team is insufficient to demonstrate a legitimate aim in respect of a PCP that applied to a far wider geographic area and a far larger section of the workforce. Alternatively, the respondent has not discharged its burden to prove that the PCP goes no further than is necessary to achieve the legitimate aim.

[180]If cost considerations are the primary driver of a PCP, the Tribunal needs to “examine carefully the nature and extent of the financial pressures on which [the respondent] relies as well as the possibility that they could have been addressed in a way which did not have the discriminatory effect” (Heskett).

[181]The third point was that the PCP was not appropriate to achieve the respondent's aim of providing 24/7 care for patients in the community. It was not one of the stated objectives for the respondent’s business plan for 2016/17. It was already being done. However, Ms Pilcher’s statement states that the respondent is still not providing a truly consistent 7 day a week community nursing service. That is an aspiration which they are now working towards. This evidence undermines the respondent's assertion that the PCP is appropriate to achieve the legitimate aim. If the PCP were appropriate to the aim, it should have resulted in the intervening 6 years in a truly consistent 24/7 community nursing service.

[182]The fourth contention was that the PCP goes beyond what is necessary to accomplish the pleaded aim of providing 24/7 care to patients in the community, and cannot therefore be justified. Ms Pilcher’s evidence was that “fixed hours was more common than fixed days”, therefore fixed days could be accommodated in the community nursing service. She cited community nursing roles in schools, sexual health clinics and diabetes clinics as examples of community nursing roles that could more easily accommodate flexible working arrangements like term time or fixed day working.

[183]More detailed submissions were made in support of this argument, relying heavily on the respondent's FW Policy and its SR Policy. The PCP to work flexibly, including at weekends cuts across the FW Policy and would entail that any agreed flexible working arrangements of its community nurses that allowed them to work other than “flexibly, including at weekends” be set aside. The clash between the PCP and the FW Policy is the reason why the respondent's SR Policy is so important. Neither Policy was part of the Business Case, and the SR Policy was neither disclosed in these proceedings nor addressed by any of the respondent's witnesses except by Ms Baxter whose 2018 statement referred briefly to it.

[184]Ms Berry submitted that the SR Policy did not comply with the Public Sector Equality Duty under section 149 Equality Act 2010, as there was no evidence of an equality impact assessment being carried out.

[185]Ms Berry made submissions in some detail about what she characterised as the respondent's requests for flexibility from the claimant changing over time. She referred the Tribunal to the evidence of the respondent's various managers, and the position they adopted in the course of the various meetings with the claimant. The requests changed from the claimant working one weekend a month, “ideally two”; to working “more flexibly which would include some weekend working or working on a Saturday”; to some weekend or bank holiday working, or the same number of hours over three days (with no mention of weekend working). These changing requests demonstrate that the PCP was not necessary to achieve the pleaded legitimate aim, as different decision makers had different views as to the level of flexibility the claimant needed to provide. Neither Ms Turnbull nor Ms Baxter considered that it was necessary for the claimant to comply fully with the terms of the PCP.

[186]Ms Berry submitted that the Workington role is important (though no separate claim in respect of this formed part of the claimant's pleaded case). The claimant did not end up making a formal application for the role and felt that Ms Eagles had “discounted” it as an option. The respondent was not actively considering less intrusive and discriminatory measures that would achieve the legitimate aim.

[187]The fifth point in Ms Berry’s submissions dealt with proportionality in the sense of the balance between the discriminatory effect of the PCP and the legitimate aim. She said that the Tribunal had been presented with such poor and incomplete evidence by the respondent as to the quantitative and qualitative impact of the PCP on the pool of comparison that it cannot properly conduct this assessment.

[188]Even where the majority of women working as community nurses have not had to leave their jobs due to the PCP, this does not mean that the PCP’s adverse effect is not great – the assessment of a PCP’s adverse effect is both qualitative and quantitative in nature (University of Manchester v Jones

[1993] ICR 474

). She submitted that we do not know how many of the 278 community nurses were women because the respondent had not disclosed that information; however, we know that the Cockermouth team of 10 only had one male member. Further, 178 of the 278 community nurses (64%) were working pursuant to some kind of part-time flexible working arrangement. The Tribunal cannot know or infer from the evidence before it what the full discriminatory impact of the PCP has been. The lack of evidence as to the PCP’s actual effect should be held against the respondent in establishing proportionality.

[189]The respondent points to increasing complexity in community nursing over the last 14 years, without describing the impact of this on its Cumbrian operations specifically. It mentions gaps in community care in Cumbria at some point within the last decade and half, giving no further details concerning the impact of these gaps on patients, or the period in which they occurred. If hundreds of patients were suffering throughout Cumbria each day due to gaps in community nursing in 2016, the PCP’s proportionality would fall to be judged in a substantially different light than if singular patients suffered slight discomfort on an occasional basis. Claimant's personal submission

[190]The claimant asked permission to have a personal statement read out by Ms Berry at the end of her submissions. The gist of this short statement was to impress upon us the importance of the principle of flexible working. The claimant said the EAT judgment had received significant media attention and was picked up by other organisations such as CIPD, Working Families and the Nursing Times. In July 2022 Jeremy Hunt had referred to better opportunities for flexible working, and the founder of Flex NHS, Kate Jarman, had also tweeted about the case. She referred to a couple of particular cases (in the ET and EAT) which she thought were interesting.

Conclusions

[191]The question at the heart of this case is whether the respondent could show that the application of its PCP to all community nurses (including the claimant) employed in the Trust was a proportionate means of achieving a legitimate aim – section 19(2)(d). Put simply, this is to be judged objectively by reference to a number of factors, and requires the Tribunal to carry out a careful evaluation of the evidence, in order to strike a fair balance between the claimant's rights as an individual and the interests of the wider community affected (per Homer). In this case, that community involved the patients for whose care at home the Trust is responsible, the pool of community nurses in Cumbria who provide that service, and the overarching needs of the organisation to provide its services efficiently and in as cost-effective a manner as reasonably possible. Evidential considerations

[192]Before dealing with the proportionality question, there are some evidential considerations on which we have directed ourselves by reference to the relevant authorities. In line with Essop, we might have expected the respondent to produce evidence of a statistical nature to support its case. This did not happen, because such evidence as the respondent did gather (produced through the claimant's FOI requests) did not answer the particular questions she wished to address. For example, the available data does not show working patterns, only working hours. What we do know, from Ms Pilcher’s evidence, is that the claimant was the only community nurse unable to comply with the PCP and whose employment was terminated as a result.

[193]The claimant expected to see specific evidence supporting the need to be more flexible, such as patient numbers versus hours available, the number of missed visits at weekends, or incidents raised due to unsafe staffing numbers. However, we found that the respondent's witness evidence on these issues was enough. The respondent's heavy reliance on increasing patient complexity was not backed up by specific data, but nor did the claimant challenge that this was the case.

[194]Ms Berry submitted that the Tribunal had been presented with such poor and incomplete evidence by the respondent as to the quantitative and qualitative impact of the PCP on the pool of comparison that it could not properly conduct an assessment on proportionality. She referred to the lack of data about how many of the 278 community nurses were women, of whom 67% were working pursuant to some kind of part-time flexible working arrangement. In our view, these figures are consistent with a common sense interpretation of the likely proportion of women and men employed in community nursing across the Trust (if not nationally), given the preponderance of women in part-time roles generally.

[195]It is correct to say, as the claimant did, that there was a lack of statistical evidence about the wider pool of community nurses employed by the respondent at the relevant time. That said, we did not find that such evidence was necessary in order to evaluate the case. Firstly, the documents produced by the respondent in the form of the business case and appendices depicted clearly the backdrop against which the review of all flexible working across the Trust was being carried out. We found the claimant’s evidence about the lack of detail and clarity in the business case to be somewhat disingenuous because that summary, read with its detailed appendices, leaves the reader in no doubt as to the reasons why the PCP was considered necessary. To an experienced community nurse like the claimant, there must have been no doubt about the changing landscape affecting community nursing across Cumbria and indeed nationally. Furthermore, the contemporary meeting notes demonstrate in terms that the claimant’s experienced union representative was very familiar with the changes both implemented and planned. This was in the context of the shift towards ICCs, something the claimant alleged she did not know about, though she did concede during this hearing that ICCs were referred to in the business case. Her complaint was that she did not know what this what this meant for her personally, but we do not accept this. Not only did the claimant make no request for further information or clarification, but we find that her position would not have been any different had this happened. In effect, the claimant’s stance was that she could see the evolution in the way community nursing was operating, but she did not agree that this should have any bearing on her fixed working pattern.

[196]Ms Baxter said in evidence that “facts and figures are out there”, though they were not referred to during the consultation exercise given that the changes to community nursing were common knowledge. We accept that evidence. It was not seriously challenged by the claimant then or during this hearing, as is clear from her own contribution to the consultation meetings (along with her experienced trade union representative’s).

[197]For the respondent Mr Brittenden submitted that if the PCP was justified for the Cockermouth team in which the claimant worked, it is no less likely to be justified in respect of the wider pool. We agree. While the statistical data was lacking from the respondent as to the particular working patterns among its 278 band 5 community nurses, we were able to glean from the data available (for example the later RCN survey) that fixed hours working was at that time most prevalent among those working in community settings, and that women are much more likely to work parttime hours than men. It is not therefore difficult to extrapolate the gender balance and working patterns across the Trust. We note also that in the relevant pool of community nurses employed by the respondent, only the claimant was unable to meet the requirements of the PCP. The only other positions where the claimant's fixed working could be accommodated were in other fields of nursing, as seen in the type of work undertaken by the claimant following her dismissal.

[198]The claimant’s interpretation that “fixed hours” “could mean” set days was at odds with Ms Pilcher’s view, and it could equally mean that the weekly working hours were capped (as in the claimant's case). We were not persuaded that it meant in reality that most community nurses worked set days only, and indeed the evidence as a whole was to the contrary.

[199]The business case and appendices, from which we have quoted extensively in our findings of fact, put beyond doubt that the circumstances affecting the claimant were not limited to the team in Cockermouth but affected community nursing across the entire Trust. The business case, read alongside the evidence of the respondent’s witnesses, shows that the issues identified were not unique to the claimant and the other members of her small team. In other words, we accept the respondent’s submission that if the PCP is justified for the Cockermouth team, it is no less so in respect of the wider pool.

[200]Ms Pilcher referred to the respondent's concerns about gaps in service. The lack of numbers showing how many patients had experienced consequences of gaps in service did not concern us, because examples were given by the respondent and it would not have affected our decision to know exactly how few or how many people might remain unattended for a time due to lack of cover at evenings or weekends. Likewise, we did not feel the respondent's genuine concerns should be disregarded for lack of statistics on unnecessary hospital admissions. Those are clinical decisions which depend greatly on the circumstances, for example whether a patient is recovering from surgery, the nature of their condition, and whether they have other support available to them at home. Having assessed the evidence qualitatively, and with the benefit of the respondent's witness evidence as much as its documents, we found that it was neither necessary nor helpful to review statistics. In any event, statistical evidence would always have been a snapshot lacking background information about the circumstances.

[201]Having initially had some concerns about the lack of statistical data from the respondent, we came to the view that the clear (and largely unchallenged) oral evidence of its managers was compelling, even in the absence of such evidence. In particular, we were impressed by Ms Pilcher's evidence at the remitted hearing, which reinforced that which we had been told by Mr Owens and others in 2018. Ms Pilcher was uniquely placed by virtue of her experience and seniority to help the Tribunal understand the issues facing the respondent and the need for continuing changes in its community nursing provision.

[202]Following Hardy and Hansons v Lax, it is for the Tribunal to reach its own judgment on the proportionality question, taking into account the various factors identified. Applying also Cockram, we are conscious that “the detail and weight of the evidence required will depend on what proposition the employer is seeking to establish” and “some propositions are so obvious that they barely require evidence at all.” Here, the aim of providing 24/7 care through the means of an effective staff rota is a matter of common sense as well as evidence. At this stage of the analysis, therefore, we did not feel unable, as Ms Berry suggested, to carry out the task of evaluating the balance of the parties’ interests. Acknowledging that this is not an exercise in assessing the respondent's decisions by reference to a range of reasonable responses, we noted the EAT’s comment in Birtenshaw, that the Tribunal “should give a substantial degree of respect to the judgment of the decision-maker as to what is reasonably necessary to achieve the legitimate aim provided he has acted rationally and responsibly”. We were wary of not accepting mere assertions from the respondent, but felt that their oral evidence was supported by “reasoned projection rather than demonstrable result” per Pitcher. We were satisfied also that the respondent's case was presented with the necessary degree of cogency.

[203]The respondent's legitimate aim has already been established, namely: “the need to provide care to patients in the community, 24 hours per day, 7 days a week and to balance workload amongst the team and reduce the cost of having to use band 6 and 7 registered nurses on a weekend”

[204]The next question is whether the PCP that all community nurses work flexibly, including at weekends is rationally connected to that aim. Ms Berry submitted that the Tribunal should ask whether the PCP is appropriate to achieve the legitimate aim, and whether it would in fact achieve the desired objective. Part of her challenge was by reference to the way that the respondent's requests for flexibility from the claimant changed over time.

[205]We did not find that this submission was borne out by the evidence. In the notes of the appeal meeting, the claimant referred to the request broadening out from weekend working to showing “any flexibility at all”, and questioned why the respondent had moved its position. It was made clear to her by Ms Baxter that this was “all about finding a solution to keep you at work”. Ms Eagles explained that, “It was about looking at the occasional weekend or bank holiday working for fairness in rota for all staff. That’s where it started and then it moved on from there to see if there was any way we could be flexible.” Ms Baxter is recorded as saying “You keep mentioning that there is an insistence on working weekends. We moved to talking about what flexibility could you give so it’s not just an insistence on weekend working. Can you explain […] why you can’t work weekends?”

[206]None of this evidence pointed to a meaningful shift in the respondent's position, as it clearly reflected an attempt to become more accommodating to the claimant's objections as time went on and her position remained unchanged.

[207]When asked about the alleged ‘confusion’ about this on re-examination, the claimant did not identify any such confusion, saying only that her response was the same all along, and was never going to change regardless of how many times the respondent changed what it was asking. Looking at the evidence more broadly, the Tribunal had no doubt that the claimant well understood the drivers for change in the service, and what the respondent was asking her to consider. Contrary to her pleaded case, the claimant was consulted at length, she was provided with sufficient information to understand the Trust’s business case, and she was in no doubt about the potential implications for her position if she could not accommodate any of the compromise options suggested by the respondent.

[208]We do not accept that the respondent's willingness to contemplate different options for the claimant, in an effort to meet her part-way, represents a change of position or an inconsistent stance on its part. The positions adopted by the respondent were consistent in demonstrating that it was seeking to improve flexibility with the claimant as well as other community nurses. The aim was to ensure 24/7 cover for the service, but the means of achieving that aim was negotiable to a point. Its handling of the discussions about the claimant's personal circumstances demonstrates a proportionate response to the situation and reflects its attempts to dilute the requirement and thereby soften the impact on the claimant.

[209]On the evidence available to us, our conclusion is that the PCP was apt to achieve the pleaded aim of providing care to patients in the community, 24 hours per day, 7 days a week and balancing workload amongst the team and reducing the cost of having to use band 6 and 7 registered nurses on a weekend. The respondent had been achieving improvements in service provision already, and it was continuing to work towards achieving further improvements. We were not at all persuaded by the argument advanced by the claimant that there were no new changes in contemplation by the time of her dismissal, or that at any time the state of affairs should be viewed as static. It could only ever be a snapshot demonstrating the position at a moment in time.

[210]We are therefore satisfied that the PCP is rationally connected to the legitimate aim. The respondent provided us with ample evidence to show that in a stretched NHS Trust, providing a safe, effective and efficient service to patients at home requires a high degree of willingness on the part of community nurses to work at weekends and on bank holidays. While truly 24/7 care might not have been fully realised at the time of the claimant's dismissal in 2016, and may still not have been perfected, there is a rational connection between providing 7 day care through the staff rota, and the requirement for all staff to participate in that rota in a fair and equitable way. The first two parts of the test in Homer are therefore met.

[211]This brings us to broader aspects of the proportionality issue. The respondent's proposal that the claimant work more flexibly, including at weekends, need not have been the only measure it could have taken to achieve its legitimate aim. In practice, however, it was the only measure it could have taken, because the only alternative was to exempt the claimant from the PCP entirely. She was not being required to comply fully with the PCP, given the respondent's willingness to relax the number of weekends or bank holidays she worked, but the claimant was unable or unwilling to bridge the gap. Although the claimant was under no formal obligation to identify to the Tribunal a less intrusive measure capable of achieving the respondent's aim, it was nevertheless striking that she had no contribution to make to that. Her only ‘solution’ was to retain her fixed working pattern unchanged into the future on an open-ended basis. Such an outcome would have done nothing to help achieve the legitimate aim.

[212]The circumstances which prompted the respondent to introduce the PCP form an important backdrop to the case. The respondent has a broad range of duties to its patients and staff, and seeks to achieve these in an environment which is continuously evolving and constantly under economic pressure. The resources available to the Trust, whether budgetary or through the numbers of available nurses, are extremely constrained. As stated by Ms Place, reduced staff numbers meant there was no longer the luxury of accommodating personal preferences on working patterns. Applying Lax, the Tribunal was asked by Mr Brittenden to consider the claimant's failure to offer any compromise as a salient feature relevant to the proportionality question. We accept that submission, as the claimant's response to the consultation forms a salient feature of the overall circumstances.

[213]On the staffing side, the FW Policy and the SR Policy have a part to play. To paraphrase some key elements of the FW Policy:• The Trust supports a work-life balance and flexible working, but set against the need to ensure a safe levels of staffing to maximise the quality of patient care and reduce clinical and non-clinical risk.

• Minimum safe staffing levels and skill mix must be agreed and reviewed in light of any significant change, such as changing patient acuity levels.

• The off duty of senior staff must accommodate both team and management requirements.

• Flexible working needs to be fair and equitable to all staff.

• All staff are expected to work a variety of shifts and shift patterns.

[214]We found that these Policies did not support the claimant's case that due to her particular circumstances, she should be treated as an exception to the general principles. The FW Policy certainly supports the principle of allowing staff to work flexibly, partly to suit their individual needs and preferences, and also in recognition of the benefits to the respondent of retaining a workforce which is able to manage its working patterns and at the same time accommodate a personal life. These aims are widely accepted and welcomed by both parties in a modern workplace. They cannot, however, be applied or interpreted too strictly. The organisation’s needs as a whole, especially for an NHS Trust, must sometimes prevail. A rigid application of the principle that a woman with childcare responsibilities may choose a fixed working pattern is liable to lead to problems with the delivery of the service to patients, and in the relationships between colleagues. As happened in this case, where small teams of nurses are sharing the responsibility for covering a flexible rota, including some weekend working, injustice and resentment can arise where a few individuals are carrying the lion's share of the unsocial hours working.

[215]Ms Berry submitted that the PCP cuts across the FW Policy and would entail that any other agreed flexible working arrangements be set aside. We do not accept this submission. In our view the FW Policy provides a framework within which employees may request flexible working and, it might be said, are encouraged to do so. But it is made explicitly clear in the terms of the FW Policy, and the SR Policy too, that any such arrangement is liable to be reviewed and is subject always to the needs of the organisation.

[216]Ms Berry further submitted that there is a clash between the PCP and the FW Policy, giving the SR Policy some importance. The SR Policy was found in our 2018 judgment to be the starting point for all flexible working arrangements to be reviewed. It was referred to in Ms Baxter's witness statement, but we do not see any particular significance in its not being produced through disclosure by the respondent. The claimant produced the SR Policy for this remitted hearing and placed great emphasis on it. However, its terms do not assist her case because the four core principles identified in it in our view reinforce rather than undermine the aims of the FW policy. These principles were to:• minimise clinical risk associated with sub-optimal skill mix and/or staffing levels

• ensure safe/appropriate staffing using fair and consistent rosters

• improve the utilisation of substantive Trust staff and reduce bank, agency and overtime spend

• improve planning of clinical and non-clinical non-effective working days (eg annual leave, sickness and training)

[217]Ms Berry's submission also referred to the trigger point for requesting that part time staff increase their hours, where “agreed safe staffing levels” have been breached. However, the claimant was not being asked to increase her hours. Rather, her hours were to remain unchanged and it was only the working pattern that was being reviewed.

[218]Mr Brittenden referred to the scope and objectives of the SR Policy, which covered a range of issues including safe staffing levels and skill mix, the need to minimise risk, fair and consistent rosters, and reducing overtime spend. He submitted that it is a refinement, noting changes that are needed and which may or not impact on existing flexible working arrangements. We accept that same interpretation.

[219]The claimant's complaint about the respondent's business case was that it was too generic, but she was unable to explain to the respondent at the time, or to this Tribunal, what further information might have helped her understand the need for more flexible working. Her objection amounted to the fact that she wished her own working pattern to remain unchanged, by having an exception made in her case. This was amply illustrated by the evidence, which demonstrated that the claimant knew of the demands on the service, increasing patient acuity levels, and the introduction of ICCs. She said she had not been shown any data, “just caseloads etc”, and this concession seems to be at odds with the claimant's insistence that she did not understand the need for change.

[220]Similarly, when commenting on the respondent's aim of providing a 24/7 service to patients, the claimant said that no such provision existed within her old place of work. This was a somewhat contradictory position. The claimant had accepted that there had been past changes but argued that due to the lack of information on caseload numbers, the respondent was unable to back up its position with data. At the same time as criticising the lack of data on the increase in the complexity of patient needs, the claimant also said she did not not see that as “having any relevance whatsoever”. When told by the respondent about the impact on colleagues in the team, working 1-2 weekends per month, the claimant showed no recognition of the impact on others.

[221]Another aspect of the claimant's evidence which struck the Tribunal was the way she responded to the consultation discussions. She showed little or no understanding of the impact of her not working at weekends and seemed to minimise the impact on colleagues. For example, the claimant felt that band 5 nurses did not need supervision, and said others were always available to backfill managers when they were attending meetings or training. She did concede that colleagues sometimes want a long weekend, and that this can be difficult to accommodate if people are not flexible. She accepted that if band 6 or 7 nurses work weekends they get time off in lieu, which means they are less able to attend meetings Monday to Friday. She acknowledged that the respondent wanted those nurses to work fewer weekends, and that it would be more expensive to have them working weekends partly because of the enhancements paid.

[222]On cross-examination during this hearing the claimant agreed it was not unreasonable for the respondent to want to avoid having band 6 or 7 nurses working the weekend or to reduce the cost of that. Her evidence about the aim of providing a 24/7 service to patients was also at times contradictory. She said that no such provision existed within her old place of work, and suggested that any changes were in the past. She criticised the absence of data on caseload numbers or on the increase in the complexity of patient needs in the community, but did not challenge that those complex needs had become part of the role.

[223]In her second witness statement the claimant went so far as to allege that the whole process was “a sham from start to finish”. That was not supported by any evidence; and to the contrary, the Tribunal was struck by the time and effort the respondent gave to the consultation process. All the respondent’s decision-makers recognised the claimant’s difficulties and were sympathetic.

[224]As stated above, the Tribunal were agreed that Ms Pilcher was an impressive witness demonstrating strong knowledge of the situation and the evolution of changes, as well as the need for them. By contrast, the claimant was unwilling to acknowledge the possibility of colleagues being affected or the service being affected, because she was entirely focused on her own personal circumstances. Her evidence about the impact on colleagues of working additional weekends to accommodate her was that it was “not a major inconvenience or detriment to them”. While acknowledging that the respondent was entitled to ensure fairness for all staff, the claimant said she could not understand “why others’ opinions were more important, given that I had special circumstances”.

[225]Although the claimant said the option of job-sharing the vacancy in Workington was dismissed by HR, she made no attempt to explore it by making enquiries of the relevant manager. We find that the respondent did not dismiss the option but that Ms Eagles identified, quite reasonably and properly, the possibility that the claimant's fixed hours may be an obstacle. The respondent advised the claimant to contact the recruiting manager but she did not do so. It cannot be criticised for not doing more.

[226]The saving of staffing costs was a feature of the case, and it is clear that this on its own would not amount to a legitimate aim. Ms Berry submitted that following Heskett, if cost considerations are the primary driver of a PCP, the Tribunal needs to “examine carefully the nature and extent of the financial pressures on which [the respondent] relies as well as the possibility that they could have been addressed in a way which did not have the discriminatory effect”. In principle we accept that this is correct, but we were not persuaded that the costs savings of band 6 or 7 nurses not working weekends was in any way a “primary driver”. It was certainly in the respondent's mind, but formed a relatively small part of the wider considerations affecting service delivery. We take into account also that “There is no principled basis for ignoring the constraints under which an employer is in fact having to operate” (Heskett) and conclude that the costs element which contributed to the respondent's decision was proportionate in the overall context.

[227]In Homer the court identified some key considerations in assessing the proportionality of a PCP. These include the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, and whether a fair balance been struck between the rights of the individual and the interests of the community. The PCP should go no further than reasonably necessary.

[228]The importance of the respondent's legitimate aim has already been addressed above, as has the question whether the PCP was appropriate to contribute to that aim. The next question to be considered is whether a fair balance has been struck between the rights of the claimant and the interests of the community. This includes some analysis of the severity of the impact on the claimant, in light of her childcare difficulties.

[229]We accept that the respondent was not asking the claimant to be as flexible as her colleagues, and accept also its submission that it it was wrong to say that the PCP went further than necessary. There was no evidence of this, and in fact, the scope of the PCP was reined in for the claimant, in recognition of her difficulties.

[230]When giving evidence at the 2018 hearing, the claimant said she had felt the respondent was “trying to catch her out” by asking questions about her childcare arrangements. She offered no real explanation to the Tribunal at that hearing for her husband's inability to help look after their children on the occasional weekend. She said her husband worked “the odd weekend”, but this was unconvincing as we were also told he worked in an office role from Monday to Friday. The claimant was also unclear in her evidence about whether her husband looked after the children on his own after she started working some evenings.

[231]In her second witness statement the claimant sought to clarify the difficulties with childcare. Due to her children's disabilities, her father-in-law could not have looked after them on his own. He worked full-time, doing both day and night shifts. He would help when he could, but was not a suitable person to leave her children alone with, because he could not manage their complex care needs by himself. He did help the claimant’s mother-in-law sometimes, depending on his shift pattern. This statement made no mention of the claimant's own mother, who was referred to only in questions from the Tribunal at the end of the claimant's evidence in 2022. Nor did the statement give any explanation for why the claimant’s husband could not not look after their children, perhaps with help from his mother, on an occasional weekend with advance notice.

[232]Our concern from the 2018 hearing that the claimant had access to childcare from her husband on occasional Saturdays, is superseded by the EAT finding that she did suffer an individual disadvantage. However, we believe this is a relevant factor in our assessment of proportionality.

[233]In her evidence at the remitted hearing, the claimant explained that her husband works as a business analyst, working Monday to Friday 9am to 5pm, “mostly or thereabouts”. She did not mention him working at weekends. When asked by the Tribunal what the difficulty was with her husband providing childcare, the claimant said that it was “too much” for him on his own, due to the children’s medical needs. The claimant agreed that her mother-in-law managed on her own, but that was because the children were at school for much of the day. From 5pm her husband was also there to help.

[234]The claimant told the Tribunal that she had discussed weekend caring with her mother-in-law as well as her own mother and they said they did not want to do that, though she also acknowledged that she had not raised that at the time of the consultation meetings with the respondent. This was also, in the final moments of her evidence, the first mention of the claimant's own mother being available to help with child care. She acknowledged the possibility that her mother-in-law could provide weekend cover and recuperate on Wednesday and Thursday that week, but said “that was not her choice”. It was not an option because her mother-in-law did not want to give up her weekends on a regular or permanent basis. The claimant (not unreasonably) took the view that she could not expect the grandparents to do any more. She did, however, concede that her mother-in-law provided respite care at the weekend, “maybe once a month”, looking after her daughter while her own mother looked after her son.

[235]We readily acknowledge the difficulties facing the claimant, especially as two of her children had disabilities (in the case of daughter, these were severe). The claimant felt that as a mother and a nurse the childcare was her primary responsibility. Putting our personal sympathy to one side, we found it difficult to understand why the claimant could not work an occasional weekend, with advance notice, relying on childcare support from a combination of her husband, her mother-in-law, or her own mother. The fact that she worked more flexibly after this employment ended, occasionally working a different day of the week and having respite care from her mother and mother-in-law once a month, demonstrates that an occasional weekend or bank holiday was in fact manageable.

[236]In reaching this conclusion, we do not discount the fact that relying on family members (even her own husband) for such support could amount to a disadvantage. But the extent of that disadvantage on an occasional weekend each year has to be weighed against the reasonable needs of an NHS Trust to deliver its care services in a manner which takes account of the requirements of both patients and other community nurses. If the claimant had no prospects of childcare from any source, that would put the disadvantage at a higher level, but in the circumstances of this case we conclude that the disadvantage was at the lower end of the scale. That is not to pass judgment on the claimant's choices, but rather it supports our view that the discriminatory impact of the PCP was proportionate and justifiable. The disadvantage to the claimant has to be balanced against the respondent's needs, which included providing 24/7 patient care, earlier discharges from hospital, avoiding gaps in the service, operating a staff rota that was fair and equitable to all community nurses, freeing up band 6 and 7 nurses to be available during weekdays, and saving the extra costs of their working weekends.

[237]It is also relevant to note that the claimant, who was best placed to do this, did not identify to the respondent or the Tribunal any less discriminatory way that the respondent could have achieved its aim. Her only solution was to be excluded from the flexible rota; a solution for her, but in no way a solution for the respondent. Had the respondent done this, it would have been vulnerable to arguments from other community nurses that their ability to enjoy a good work-life balance was impaired, with the potential for other women with childcare responsibilities to complain about discriminatory treatment.

[238]This is not a case where we needed to make findings of fact on the truthfulness of witnesses on either side, but nevertheless we have taken into consideration the responses the claimant provided to the respondent during consultation, and we have had to take a view on her stance in order to weigh up the proportionality question. We make no criticism of the claimant for adhering so firmly to her refusal to change her working hours; she was dealing with very difficult circumstances exacerbated by the disabilities of two of her children. But that stance was unquestionably intransigent, and applying Lax, we agree with Mr Brittenden that we are entitled to weigh this in the balance in our consideration of the impact on the claimant versus the respondent's reasonable needs.

[239]We find that the respondent's managers were conscientious in weighing up the issues in 2016-17, and addressed their minds to the options. Each decision-maker had a good understanding based on their role and experience of the reasons for the changes in community nursing, and the difficulties this presented for the claimant. Unfortunately for the claimant, she could not contemplate any form of compromise whatsoever. This is well illustrated by our detailed findings of fact. Even in the face of her dismissal, the claimant could or would not contemplate the option of working “one weekend a year” or any bank holidays. At the two hearings in front of this Tribunal we felt that the claimant was slow to volunteer a full and frank explanation of her difficulties in showing even a little flexibility. Indeed, at the time when the respondent was asking about her childcare arrangements, the claimant resented these questions and said she felt “harassed”.

[240]The fact is that the claimant was determined to retain her set days on Wednesdays and Thursdays for life, and did not want her employer ever to reopen that question again. It is not necessary for the respondent to show that it was impossible to accommodate the claimant’s insistence on being excluded from the PCP. It has nevertheless demonstrated to us through its evidence as a whole that its actions were proportionate and in keeping with its legitimate aim. Weighed against the claimant's intractable position, the reasonable needs of the organisation justified the PCP.

[241]The Supreme Court in Essop referred to requirements which many people sharing a particular protected characteristic of them cannot meet. In this case, we find on on the facts that the claimant could meet the respondent's requirement to work flexibly, including at some weekends, albeit with difficulty. That disadvantage needs to be balanced against the respondent's business needs. That the claimant might have had some difficulty or inconvenience in comply with the PCP does reflect the disadvantage she experienced as a working mother, but the degree of disadvantage when weighed up against the respondent's aims and systems of work did not warrant a conclusion that the PCP was unjustifiably discriminatory.

[242]For these reasons, we conclude that the respondent acted proportionately in its application of the PCP to the claimant and that it met the burden of establishing it was justified pursuant to section 19(2)(d) Equality Act 2010. Unfair dismissal

[243]Having found that the respondent acted proportionately in deciding to apply the PCP to the claimant, we turn to the question of the fairness of her dismissal for ‘some other substantial reason’ under section 98(1)(b) Employment Rights Act 1996. The dismissal arose from the application of the PCP, in that the claimant's contract was terminated and re-engagement on new terms was offered. In our first judgment we set out in more detail the reasons why we considered this to be a fair dismissal under section 98(4) of the 1996 Act, taking into account all the circumstances and in accordance with equity and the substantial merits of the case.

[244]The task required of us at this remitted hearing was to revisit the question of fairness in light of our conclusions on whether the reason for dismissal was tainted by indirect discrimination. Having found that this was not the case, we remain of the view that the dismissal was fair and reasonable under the 1996 Act.

[245]In considering the requirements of section 98(4) we have taken into account all the relevant facts as discussed above. These include, in summary, the fact that the respondent had a cogent business case underpinning the need for change, and carried out an extensive consultation exercise with the claimant. As this progressed, the respondent modified its position repeatedly, in its efforts to find ways of avoiding terminating the claimant's contract. Its compromise proposals were not acceptable to the claimant, but it made a sincere attempt to enable her to continue in her role. The result of the failure to reach an agreement meant that no step other than dismissal could have achieved the change to the claimant's contract that was needed.

[246]It is also relevant to note that all the other band 5 community nurses employed by the respondent could comply with the requirement to work flexibly. We are satisfied that the respondent could not reasonably have made an exception for the claimant by exempting her from the requirement to participate in a flexible working arrangement. The decision to dismiss therefore fell squarely within the range of reasonable responses. Employment Judge SE Langridge