Flexible working request: Internal appeal 'cured' indirect sex discrimination

Posted by Ruth Christy on
A recent decision by the Employment Appeal Tribunal (EAT) demonstrates the importance of having an effective appeals procedure in place and the potential value of trial periods in relation to flexible working requests.

Ms Little worked as a full-time sales executive for Richmond Pharmacology Ltd (RPL) before going on maternity leave in September 2009. Before she returned she made a flexible working application to work part-time.

Ms Little's application was rejected in June 2010 on the basis that it was not feasible for any sales executives to work part-time. This was subject to appeal and Ms Little appealed. However, before RPL had set a date for the appeal hearing,

Ms Little resigned.

RPL asked her to reconsider this until an appeal hearing took place, which it did in July 2010.

The appeal was upheld and RPL agreed to a three month trial period on Ms Little's proposed terms from August 2010. Ms Little refused to accept this offer and confirmed her resignation.

The EAT confirmed that the Employment Tribunal (ET) was correct in dismissing Ms Little's claim for indirect sex discrimination.

In unfair dismissal cases, an appeal properly conducted can turn a procedurally unfair dismissal into a fair one, because it forms part of the employer's decision-making process. One of the key questions raised was whether a successful internal appeal can rectify an earlier act of potentially unlawful indirect sex discrimination.

The EAT accepted that despite the initial rejection of the flexible working request, because of the successful appeal, Ms Little had not suffered any disadvantage or detriment. Ms Little could have accepted the trial period to prove that a sales executive could work part-time. Part-time working on a trial basis was not a detriment.

The EAT stressed that this case was particularly fact-sensitive. Both Ms Little's initial request and the appeal were concluded before she was due to return to work. If she had already returned to work full time, the result may have been different.

It is also important to note that Ms Little's claim for constructive dismissal could not proceed because it was outside the time limit. If it had been in time, she could well have been successful because previous case law has established that in constructive dismissal cases, a fundamental breach by the employer cannot be 'cured' by an appeal without the employee's agreement.

However, the case demonstrates that in some cases it may be possible to remedy potential discrimination via an employer's internal appeals process.

Employers should also take care not to immediately reject flexible working requests as not being feasible. If an employer agrees to a trial period of flexible working, they are likely to be in a much stronger position if it reveals that the flexible working arrangement is in fact not feasible for operational reasons.

It also becomes much more difficult for the employee to say they have suffered a detriment when they have genuinely been given an opportunity to try the flexible working arrangement.

Case: Little v Richmond Pharmacology Ltd

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Ruth Christy
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