Can an employer ‘cure’ an act of indirect discrimination on appeal?

Little v Richmond Pharmacology Ltd [UKEAT/0490/12/LA]

Ms Little was employed by Richmond Pharmacology Ltd (‘Richmond’) as a full-time sales executive.

Whilst Ms little was on maternity leave she made an application for flexible working. She requested to work part-time on her return from maternity leave.

Ms Little’s application was refused as it was not feasible for a sales executive to work part-time. Ms Little appealed the decision, but later resigned prior to the appeal hearing taking place.

Ms Little attended the appeal hearing. At the hearing her appeal was upheld and she was offered part-time working on a three month trial basis, on the terms she had originally requested, to commence at the end of her maternity leave. Ms Little was invited to retract her resignation. Ms Little did not accept the offer to work part-time and confirmed her resignation.

She brought claims for constructive unfair dismissal and indirect discrimination. (Only the claim of indirect discrimination went to hearing as her claim for unfair dismissal was out of time).

Ms Little argued Richmond had applied a provision, criteria or practice (i.e. requiring sales executives to work full-time) that:

1. would apply to men and women, but would put women at a particular disadvantage when compared to men;
2. put Ms Little at a personal disadvantage; and
3. which Richmond could not show to be a proportionate means of achieving a legitimate aim.

The Employment Tribunal (‘ET’) and EAT concluded that Ms Little had not suffered a personal disadvantage as Richmond had agreed on appeal that she could work part-time even though it was offered on a trial basis only.

The EAT commented that the internal appeal process forms “part and parcel of the employer’s decision-making process.” The decision on appeal effectively corrected the original decision to reject her request to work part-time.

This is a welcome decision. This case suggests that employers are able to correct any act of indirect discrimination on appeal, effectively giving employers a second chance to get things right. Whilst this may be correct in some cases, it is important to remember that this case was decided on its own facts. It was a crucial factor that the initial decision to refuse Ms Little’s request took place whilst she was still on maternity leave so she suffered no detriment.

This case also leaves a number of unanswered questions. It remains unclear whether Richmond’s decision on appeal would have also remedied Ms Little’s claim that she was constructively and unfairly dismissed.

Dealing with flexible working requests can be tricky. We can help guide you through and hopefully avoid time-consuming appeals and costly employment tribunal claims.