Nurse fairly dismissed for refusing flexible working, tribunal rules
The nurse, who has two children with disabilities, was sacked after saying no to working weekend shifts under trust’s new flexible working policy
A community nurse who was sacked after claiming she could not meet flexible working arrangements with her employer due to childcare issues has lost an unfair dismissal claim.
Nurse was sacked for failing to comply with trust’s flexible working policy
Gemma Dobson was dismissed by the Cumbria Partnership NHS Foundation Trust – now North Cumbria Integrated Care NHS Foundation Trust – in 2017 after she said she could not work weekends or bank holidays to comply with new flexible working arrangements.
Ms Dobson was employed as a band 5 nurse at the trust to work 15 hours a week on Wednesdays and Thursdays because she had caring responsibilities for her children who had disabilities. These hours had been requested by her and put in place in 2008.
But in 2016 the trust brought in a flexible working system with a requirement that all community nurses work some weekends. Ms Dobson said she was unable to meet these requirements or other suggestions put forward by the trust. She was dismissed in 2017.
Ms Dobson took the trust to an employment tribunal in 2018 which ruled she was not unfairly dismissed. She won an appeal against the decision which found the tribunal failed to take the issue of ‘childcare disparity’ into account.
But a second employment tribunal in May this year also ruled she was not unfairly dismissed.
Nurse’s daughter had severe disabilities and needed her at weekends
In meetings with her employers Ms Dobson said she was unable to meet the flexible working requirements because of her caring responsibilities and suggested it was unfair to expect her husband to care for their children alone on weekends after working a full week, recently published tribunal documents state.
Giving evidence, she said the children’s needs were ‘too much’ for her husband on his own largely because of 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,’ she added.
She said her mother-in-law, who helped during the week, was unable to help at weekends and she was not able to access other childcare because of her children’s medical conditions.
At a meeting in December 2016, Ms Dobson told the trust she could not work ‘even one weekend a year’ and requested that the issue of flexible working ‘never be raised again’, the document states.
The trust gave Ms Dobson a business case setting out reasons for the proposed changes, including increasing complexity in patient care, the cost implications of paying band 6 and 7 staff to cover weekends and the consequences of those staff not being available as often during the week because they were covering weekends.
It claimed it could save up to £200 per weekend by avoiding using more senior nurses, resulting in savings of £2,400 over 12 weeks.
Trust deemed to have been ‘conscientious’ when considering the case
The trust pointed out that other nurses were expected to work more weekends in a month because she was unable to work at weekends and this was causing resentment among the team.
According to the judgement document, the trust had several discussions about flexible working with Ms Dobson including her working the occasional weekend with ‘plenty of notice’.
It said: ‘Whenever the district nursing sister tried to make suggestions about flexibility, the claimant interrupted by saying: “No”.’
The employment judge at the second tribunal ruled managers were ‘conscientious’ in weighing up the issues Ms Dobson raised.
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