Indirect Discrimination Following Internal Appeal
A case was recently heard by the Employment Appeals Tribunal (EAT) where they considered if an act of indirect discrimination be ‘cured’ by an internal appeal.
The EAT decided that yes it could. However this may be specific to the particular facts of the case.
In the case of Little v Richmond Pharmacology Ltd the Claimant while on maternity leave made an application to return to work on a part-time basis. This application was declined. Between this decision and her expected date of returning to work the Claimant resigned and pursued her right to appeal against the refusal of flexible working.
Following the internal appeal the Claimant was offered part-time hours on a trial basis as she had requested. The Claimant still submitted claims in the Employment Tribunal for constructive dismissal and indirect discrimination on the grounds that she suffered a detriment following the refusal of her request for flexible working. These claims were submitted out of time and the Tribunal only allowed the time to be extended for the indrect discrimination claim.
The Employment Tribunal rejected the complaint of indirect sex discrimination as the successful appeal had ‘cured’ the initial detriment. The EAT upheld the Tribunal’s decision. They noted that the internal appeal had concluded before the Claimant was expected to have returned to work and she was not placed at a personal disadvantage. Having drawn upon the experience of its lay members the EAT commented that the refusal of part-time working was in this case conditional on the Claimant’s right of appeal.
It was further noted by the EAT that the Claimant did not claim that her dismissal was a detriment arising from indirect discrimination so the practical application of the principle established in this case may be limited to cases with similar facts.
It you have have been on maternity leave and you believe that your employer is making it difficult for you to return or you have been forced to resign as a result of your employer’s behaviour please contact the employment law specialists at Michael Lewin Solicitors who will be happy to discuss your case with you.
Written by Anthony Fox