By Safia Tharoo
The Employment Appeal Tribunal (EAT) recently decided a case brought my Ms Little against her former employer, Richmond Pharmacology Ltd (UKEAT/0490/12).
Ms Little was employed as a sales executive. She went on maternity leave in September 2009 and in early 2010 applied for a flexible working arrangement upon her return in August 2010. She wished to work Monday to Wednesday, 9am to 3pm. In additional she wished to have remote email access (usually restricted to directors) so that she could contact clients if necessary on Thursday and Friday. Her application was rejected by her line manager, who decided that it was not feasible for a sales executive to operate on a part time basis.
Ms Little was entitled to appeal that decision, and did so a few weeks later. However, just a few days later, before an appeal hearing could be arranged, she resigned. She was asked to reconsider her decision until an appeal hearing had taken place, which was arranged for three days after her resignation. The appeal was heard by Richmond Pharmacology’s Operations Director, and he heard submissions from Ms Little. He decided to uphold her appeal in that he offered her a three month trial on the terms she had suggested upon her return to work. However, Ms Little rejected that offer and confirmed her resignation.
Ms Little then brought a claim of indirect sex discrimination against her employer. She argued that they had a criterion that all sales executives must work full time, which had a disproportionate impact on women who were less able to meet it. Richmond Pharmacology argued that there could be no case of discrimination as Ms Little had not suffered any detriment (an essential component of a claim) as although the original application had been rejected, that decision had been overturned on appeal. The appeal decision was made before Ms Little was due to return to work and therefore she could have taken up the offer of a trial in August when she was due to return. In turn, Ms Little asserted that an internal appeal could not remedy the earlier act of discrimination.
The Employment tribunal did not accept Ms Little’s arguments and found that the criteria relied upon here (full time working) had not been applied to her at her appeal hearing and as a result there had not been any detriment.
The EAT agreed. They took the view that the original decision had been clearly stated to be subject to appeal. That appeal, so long as it was consensual, formed part and parcel of the employer’s decision making process. Therefore, ultimately, Ms Little did not suffer any disadvantage as she was provided with the opportunity to return to work on her own terms. The EAT did not accept that the act of discrimination had been completed at the point of the initial decision and was not capable of remedy thereafter.
This case highlights the importance of a thorough and detailed appeals process, be it for a situation such as this or for any form of disciplinary sanction. An employee who is initially dismissed, but whose appeal against dismissal is successful, is treated as if his contract of employment had never been terminated, and cannot bring a claim of unfair dismissal thereafter. Therefore an appeal allows an employer a second opportunity to consider its own decision and either decide that it feels the decision will stand up to scrutiny or accept that there may have been flaws in the initial decision and rectify them before the matter is pursued further.
Looking at the specifics of this case, employers need to consider all applications for flexible working carefully and look at the extent to which they can be accepted. Whilst an employer is not required to accede to all requests, it must provide detailed reasons for any refusal that show how and why such a request would not be feasible in the circumstances. A failure to do so would open up the prospect of a claim of discrimination succeeding.
Safia Tharoo, Barrister, 42 Bedford Row, London