Indirect sex discrimination claims about working patterns and hours are sometimes based on the premise that women are less able than men to comply with an employer’s requirements because they are more likely to have childcare responsibilities.
The EAT has confirmed that it is still a well-established fact that women have greater childcare responsibilities than men, meaning that a claimant does not need to present evidence to support the point. This is known as taking judicial notice, although a claimant does not need to use that label. Nevertheless, it remains open to a respondent in a particular case to present evidence that the disparity does not in fact cause a disadvantage in relation to a particular working pattern or hours requirement. (Dobson v North Cumbria Integrated Care NHS Foundation Trust, EAT.)