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MUST AN EMPLOYER HELP WITH CHILDCARE?
June 2010
A single mother recently took the Army to tribunal claiming that it had failed to assist with necessary childcare arrangements. She won her case. So does this mean you must provide them, or did this employer make a very big mistake?
My child is sick
Tilern DeBique (D) had been employed for a number of years by the Army as a soldier. She is also a single parent with a young daughter. One day D failed to turn up for parade. This was because her child had been taken ill and she had nobody else to care for her.
Disciplinary action
But as D had been absent without permission, the Army commenced disciplinary action against her. She defended her position on the basis that, as a single parent, she had little choice other than to stay at home and care for her daughter. Not only that, she also said that the Army should have provided her with childcare facilities.
A dangerous reply
In response a senior officer told D that the Army was an “unsuitable place for a single mother who could not sort out her childcare arrangements” and that “her domestic situation left her unsuitable to be part of a war fighting machine”. Due to these comments, D resigned her position and subsequently left the Army.
Starting a war
Following this, she mounted a claim for sex and race discrimination. Interestingly, she represented herself at the tribunal where she argued that she was entitled to £1.1 million. This was on the basis that she had lost a potential 22 year career and all the pension rights that went with it. She also sought compensation for her injury to feelings and loss of other benefits such as the accommodation that was provided with her job.
Won the battle
The tribunal found in D’s favour. However, she did not get the amount she was after/ / instead she was awarded just over £17,000 (despite many commentators saying this sum would go into six figures). So where did the Army go wrong with this case? Thankfully, it was not because it failed to offer D childcare facilities – although the tribunal did comment that it could have done much more to assist her with this problem.
The big mistake
It lost because the senior officer criticised D’s personal circumstances and this, the tribunal felt, amounted to indirect sex discrimination. But D also made mistakes in bringing her case, primarily in that she had failed to mitigate her losses, ie. find another job after leaving. This is something that any claimant must do.
Lesson for us all. Whilst the internal workings of the Army are unique, this case serves as a reminder for all employers that when they are faced with a female employee who has childcare problems, they should not make any comments that could be perceived in a negative way.
Tip. You are not required to provide any childcare facilities, but employers do have a statutory duty to consider flexible working requests made by employees with children under the age of 17 (18 if disabled). But you can reject one if it does not suit you, and the grounds on which this will happen can be outlined in a flexible working policy.
Source: Tips & Advice Personnel May 13 2010
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