EAT: Choudhury P, UKEAT/0220/19/LA, [2021] IRLR 729, 22 June 2021

The EAT allowed an appeal against a tribunal’s rejection of an indirect sex discrimination claim from the claimant, a community nurse who was dismissed because she was unable to comply with a forced move to flexible working, including at weekends, because of her caring responsibilities for her three children, two of whom are disabled.  The appeal, brought on multiple grounds, and succeeded on the basis that the tribunal had erred in limiting the pool for comparison to the team in which the Claimant worked, whereas it should logically have considered all community nurses across the Trust. Further, and of particular interest, Choudhury P ruled that the tribunal had erred in deciding that there was no evidence of the group disadvantage necessary for an indirect discrimination claim because it had failed to take judicial notice of the fact that women, because of their childcare responsibilities, were less likely to be able to accommodate certain working patterns than men.

At §42 Choudhury P drew a number of principles from the leading authority, Phipson on Evidence 19^th Ed at §§3-01 to 3-03 and 3-17:

1. There are two broad categories of matters of which judicial notice may be taken: (i) facts that “are so notorious or so well established to the knowledge of the court that they may be accepted without further enquiry”; and (ii) other matters that “may be noticed after inquiry, such as after referring to works of reference or other reliable and acceptable sources”.
2. The Court must take judicial notice of matters directed by statute and of matters that have been “so noticed by the well-established practice or precedents of the courts”:
3. However, beyond that, the Court has a discretion and may or may not take judicial notice of a relevant matter and may require it to be proved in evidence;
4. The party seeking judicial notice of a fact has the burden of convincing a judge that the matter is one capable of being accepted without further inquiry.

 At §43 the Judge referred to the decision of the EAT in Commerzbank AG v Rajput (2018) UKEAT/0164/18, [2019] ICR 1613in which the EAT ruled that a tribunal had erred in inferring that, in making its promotion decisions, the employer had made certain stereotypical assumptions about women which it would not have applied to men. Soole J stated that “The existence of stereotypical assumptions may fall within the first category identified in Phipson, i e as a fact “so notorious or so well established to the knowledge of the court that they may be accepted without further enquiry”; or within the second category of matters which may be noticed after enquiry…” and that a tribunal could use its experience of stereotypical assumptions only with prior notice to the parties. He had referred to a number of authorities including the decision in London Underground v Edwards (No.2) [1999] ICR 494in which the Court of Appeal agreed with a submission that the tribunal was “entitled to take into account their own knowledge and experience that the burden of childcare falls upon many more women than men and that a far greater proportion of single parents with care of children are women than men”  and stated (per Potter LJ, §24) that “An industrial tribunal does not sit in blinkers”. He also referred to the dicta of Lady Hale in Essop v Home Office (UK Border Agency) [2017] UKSC 27, [2017] ICR 640, §39 that one of the “context factors” relevant to a claim of indirect discrimination may be that “the expectation that women will bear the greater responsibility for caring for the home and family than will men” which was relied upon by Shanks J in Cumming v British Airways Plc UKEAT/0337/19/JOJ [2021] IRLR 270 to conclude that there was no “need for evidence to show that female cabin crew (like any other group of females) bear the bulk of child care responsibilities”. Choudhury P concluded on the basis of these authorities that:

[46] … (a) First, the fact that women bear the greater burden of childcare responsibilities than men and that this can limit their ability to work certain hours is a matter in respect of which judicial notice has been taken without further inquiry on several occasions. We refer to this fact as “the childcare disparity”;

(b) Whilst the childcare disparity is not a matter directed by statute to be taken into account, it is one that has been noticed by Courts at all levels for many years. As such, it falls into the category of matters that, according to Phipson, a tribunal must take into account if relevant.”

[47] That is not to say that the matter is set in stone: many societal norms and expectations change over time, and what may have been apt for judicial notice some years ago may not be so now. However, that does not apply to the childcare disparity. Whilst things might have progressed somewhat in that men do now bear a greater proportion of child caring responsibilities than they did decades ago, the position is still far from equal. The assumptions made and relied upon in the authorities above are still very much supported by the evidence presented to us of current disparities between men and women in relation to the burden of childcare.

[48] …We are sympathetic to the notion that if a party seeks to rely upon a matter in respect of which judicial notice is to be taken, then it should identify that matter up front. There are several reasons for taking that approach:

1. 1. 1. First, it seems to us to be consistent with the principle, which was not disputed, that the burden in terms of establishing that a matter is capable of being judicially noticed lies with the party seeking to rely upon it.
      2. Second, it is preferable that all parties and the Tribunal are aware of precisely what it is that should be judicially noticed. Whilst the childcare disparity is uncontroversial and accepted by the Respondent, other related matters are not. For example, it is not accepted that the childcare disparity necessarily means that anyrequirement to work flexibly will put women at a disadvantage compared to men. Flexible working can mean different things in different contexts. Some types of flexible working, e.g. the ability to work any seven-hour period between the hours of 8am and 6pm, might even be considered advantageous by some with childcare responsibilities. It seems to us that giving advance notice of the matters sought to be relied upon would reduce the scope for disagreement later. A matter in respect of which judicial notice may be taken, by its very nature, ought to be one that is uncontroversial. The fact that it is not might cast doubt on whether it really is so notorious and well-established that it can be accepted without further inquiry.
      3. It is in the interests of fairness that the other party be given an opportunity to respond and comment. The Tribunal would be entitled to take judicial notice of a matter, notwithstanding any objection by the opposing party, if it is satisfied that that is warranted. However, the Tribunal may well be better placed to make that assessment once it has heard any argument to the contrary.
      4. However, that does not mean that a party needs to plead the term “judicial notice” expressly in order for adequate notice to have been given. Depending on the context, the nature of the claim and, if relevant, the specialist nature of the tribunal, it might suffice if the allegation being made contains an assertion that could be established by evidence or by the taking of judicial notice. In a claim of indirect discrimination, an assertion that a particular PCP puts women at a disadvantage because of their childcare responsibilities as compared to men, would be sufficient, in our view, to identify a matter in respect of which judicial notice could be taken. The childcare disparity is very well-established. It is frequently referred to in the authorities (see above) and is also referred to in the EHRC Code of Practice, which the Tribunal is obliged to take into account. As such, there is little need for more to be said by way of pleading. Furthermore, as a specialist employment tribunal, the childcare disparity is a matter that falls within the scope of its specialist expert knowledge and can be taken into account without more. We consider that approach to be consistent with the general direction of travel of making it easier for litigants to establish claims of indirect discrimination, and the fact that claims are often brought by litigants in person, who may be aware of the childcare disparity, but who may have no knowledge of the principles relating to judicial notice.
      5. The Claimant and the Intervenor appeared to go further in suggesting that the Tribunal was bound to take judicial notice of the childcare disparity even where there is no notice of the issue. Ms Darwin relied upon the extract from Phipson in which it is said that in respect of matters noticed in precedents, the Court must take judicial notice and has no discretion not to do so. However, that does not, in our judgment, require a Tribunal to be constantly on the lookout for things that might be amenable to being judicially noticed even if not identified by the parties expressly or implicitly in their case. As Mr Sutton submitted, the Tribunal cannot be treated as a “repository of knowledge” that will rush to the aid of a party whose case lacks clarity or would otherwise flounder for want of evidence.”

At §49 Choudhury P accepted that the issue had been raised by the claimant in her pleaded case which “provides sufficient notice of the issue in respect of which judicial notice is invited: the Tribunal was expressly being asked to find that women are more likely to be child carers than men and that this put women in general, and the Claimant specifically, at a disadvantage in the context of being required to work flexibly. The Tribunal erred in not taking account of it and in treating the Claimant’s case as unsupported by evidence. The childcare disparity is so well known in the context of indirect discrimination claims and so often the subject of judicial notice in other cases that it was incumbent on the Tribunal, in the circumstances, to take notice of it here.

His Lordship went on to state ay §50 that “taking judicial notice of the childcare disparity does not necessarily mean that the group disadvantage is made out. Whether or not it is will depend on the interrelationship between the general position that is the result of the childcare disparity and the particular PCP in question… Judicial notice enables a fact to be established without specific evidence. However, that fact might not be sufficient on its own to establish the cause of action being relied upon. As is so often the case, the specific circumstances will have to be considered and one needs to guard against moving from an “indisputable fact” (of which judicial notice may be taken) to a “disputable gloss” (which may not be apt for judicial notice): see HM Chief Inspector of Education, Children’s Services and Skills v Interim Executive Board of Al-Hijrah School [2017] EWCA Civ 1426, [2018] 1 WLR 1471) at para 108. Taking judicial notice of the childcare disparity does not lead inexorably to the conclusion that any form of flexible working puts or would put women at a particular disadvantage.”

Choudhury P concluded that:

“[56] …  when considering whether there is group disadvantage in a claim of indirect discrimination, tribunals should bear in mind that particular disadvantage can be established in one of several ways, including the following:

1. 1. There may be statistical or other tangible evidence of disadvantage. However, the absence of such evidence should not usually result in the claim of indirect discrimination (and of group disadvantage in particular) being rejected in limine;
   2. Group disadvantage may be inferred from the fact that there is a particular disadvantage in the individual case. Whether or not that is so will depend on the facts, including the nature of the PCP and the disadvantage faced. Clearly, it may be more difficult to extrapolate from the particular to the general in this way when the disadvantage to the individual is because of a unique or highly unusual set of circumstances that may not be the same as those with whom the protected characteristic is shared;
   3. The disadvantage may be inherent in the PCP in question; and/or
   4. The disadvantage may be established having regard to matters, such as the childcare disparity, of which judicial notice should be taken. Once again, whether or not that is so will depend on the nature of the PCP and how it relates to the matter in respect of which judicial notice is to be taken.

[57] In the present case, the Tribunal did not consider any of (b), (c) or (d) and instead dismissed the claim of indirect discrimination because of the lack of direct evidence of group disadvantage. In doing so, it is our judgment that the Tribunal erred in law..”

Claimant: Mohinderpal Sethi QC, Sophia Berry and Bianca Balmelli, instructed by Slater and Gordon

Respondent Mark Sutton QC and Stuart Brittenden, instructed by Ward Hadaway LLP

Intervenor: Claire Darwin and Emma Foubister, instructed by Working Families