United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JASON GALBRAITH-MARTEN (of Counsel) & MS SHERYN OMERI (of Counsel) Instructed by: Messrs Bindmans LLP 236 Grays Inn Road London WC1X 8QB
For the Respondent	MR CHRISTOPHER QUINN (of Counsel) & MS CHARLENE HAWKINS (of Counsel) Instructed by: Edwin Coe LLP Solicitors 2 Stone Buildings Lincoln's Inn London WC2A 3TH


 


SUMMARY

SEX DISCRIMINATION – Indirect

Whether Claimant suffered indirect sex discrimination in circumstances where her request for flexible working following a return from maternity leave was initially refused and then granted on appeal. Held: Employment Tribunal entitled to find that she did not.


 


HIS HONOUR JUDGE PETER CLARK

1. This case has been proceeding in the London (South) Employment Tribunal. The parties are Ms Little, Claimant, and Richmond Pharmacology Limited, Respondent. This is principally the Claimant's appeal against the Judgment of an Employment Tribunal chaired by Employment Judge Martin, promulgated with Reasons on 29 June 2012, dismissing her claims of indirect sex discrimination brought against the Respondent, her former employer. There is a conditional cross-appeal by the Respondent. Her complaint of unfair dismissal was earlier dismissed by an Employment Tribunal on the basis that it was time-barred. An appeal against that order was dismissed by the EAT, which held that the effective date of termination of the Claimant's employment was the date on which she tendered her immediate resignation, that is 19 July 2010.

The facts

2. It is often said that discrimination cases are particularly fact-sensitive. This case is no exception. We take the relevant facts, chronologically, from the findings of the Employment Tribunal.
3. The Respondent is a clinical research organisation operating in a highly competitive marketplace. It relies on providing a high level of service to its clients with one individual being the central point of contact between the company and the customer at all stages in the sales process and the running of the drugs trial. It also has a sophisticated spam filter system which means that external access to its email system is limited to directors and staff with a particular need.
4. The Claimant joined the Respondent on 8 March 2006 as an evening receptionist. In January 2009 she was promoted to sales executive working full-time. On 14 September 2009 she went on maternity leave prior to the birth of her second child.
5. Between January and May 2010 she applied to the Respondent for a flexible working arrangement on her return to work following maternity leave in August 2010. The original application was amended and finally, on 12 April, she proposed working Monday to Wednesday, 9.00 am to 3.00 pm in the office, adding that she would like remote email access in order to permit her to contact clients or colleagues on Thursdays and Fridays.
6. On 17 June 2010 Ms Gowling, the Claimant's line manager, rejected the Claimant's application on the basis that it was not feasible for a sales executive to operate on a part-time basis.
7. On 9 July the Claimant appealed against that refusal by letter and email. The Employment Tribunal found that no email was received by the Respondent and the letter was received on 14 July. Before an appeal hearing could be arranged the Claimant resigned on 19 July. That same day she was asked by the Respondent to reconsider until an appeal hearing took place. On 22 July an appeal hearing took place before Mr Berelowitz, the Operations Director. The Claimant attended that hearing. Her appeal was upheld to the extent that he offered a three-month trial on the terms she had suggested following her return from maternity leave in August. The Claimant did not take up that offer but instead on 26 July she confirmed that her resignation of 19 July stood.

The Employment Tribunal decision

8. Having directed themselves as to the law and set out the parties' submissions the Employment Tribunal reached the following conclusions: (1) the relevant provision, criterion or practice ("PCP"), applied to the Claimant, was that sales representatives work full-time (paragraph 29); (2) the PCP was applied when the Claimant applied for flexible working and it was disapplied by Mr Berelowitz on appeal (paragraph 30); (3) she did not suffer a disadvantage in light of Mr Berelowitz's appeal decision (paragraph 33); (4) anyway, the PCP was justified (paragraphs 35 and 37).

The appeal and cross-appeal

9. The Respondent's conditional cross-appeal challenges the Employment Tribunal's findings at paragraphs (1) and (2) above; the Claimant's appeal challenges findings (3) and (4).
10. The interesting and, we are told, novel question raised in the Claimant's appeal is: what is the effect of a successful internal appeal on an earlier act of prima facie, unlawful indirect sex discrimination? We shall begin with that question.
11. This case was decided on the provisions of the Sex Discrimination Act 1975, as amended. By s.1(2)(b) an (employer) indirectly discriminates against a woman (employee) if he applies to her a PCP which he applies or would apply to a man but (i) which puts or would put women at a particular disadvantage when compared with men (disparate impact) and (ii) puts that employee at a disadvantage (personal disadvantage) and (iii) which (the employer) cannot show to be a proportionate means of achieving a legitimate aim (justification). By s.6(2)(b) such discrimination is unlawful where the employer discriminates against her by dismissing her, or subjecting her to any other detriment. By s.82(1A)(b) dismissal includes "constructive dismissal", defined in the same way as under s.95(1)(c) Employment Rights Act 1996.
12. It is important to note, as is agreed between counsel, that before the Employment Tribunal the Claimant's case on unlawful discrimination was not that she was (constructively) dismissed on 19 July 2010. It was that she was subjected to a detriment when Ms Gowling refused her application to work part-time on 17 June 2010.
13. In determining the effect of the internal appeal decision in this case we have been referred to the treatment of internal appeals in the law of unfair dismissal in three situations. None is precisely analogous, but may be of assistance in deciding the present question.
14. First, constructive dismissal (Employment Rights Act 1996 s.95(1)(c)). In Bournemouth University v Buckland [2010] IRLR 445 a question arose in the Court of Appeal as to whether a fundamental breach by the employer of the implied term of mutual trust and confidence could be cured before acceptance of the breach by the employee by upholding his grievance about their conduct amounting to breach. The Court answered that question in the negative, applying ordinary contract law. All that the employer can do in such circumstances is to invite the employee to affirm the contract. Absent affirmation the employee remains entitled to accept the breach and leave the employment in circumstances amounting to constructive dismissal.
15. Mr Galbraith-Marten invited us to apply that principle to the present case. On the facts here, if there was a completed tort of indirect sex discrimination on 17 June that could not be "cured" by a successful subsequent appeal which gave the Claimant the part-time working which she had sought and which had been refused by Ms Gowling.
16. In response, Mr Quinn points to the facts found in this case. At the time Ms Gowling refused the Claimant's request for part-time working on 17 June the Claimant was still on maternity leave and not due to return to work until 25 August. Ms Gowling's letter of 17 June made clear that her decision was subject to a right of appeal. The Claimant exercised that right and, notwithstanding her resignation effective on 19 July, she attended the appeal hearing before Mr Berelowitz on 22 July. The appeal was successful and Mr Berelowitz granted her application for flexible working on a three-month trial basis. Nevertheless, the Claimant declined the Respondent's offer to withdraw her resignation, which she confirmed by letter dated 26 July. Unlike Buckland the issue here is not whether any repudiatory breach has been cured by the appeal, rather whether Ms Gowling's decision, conditional on the outcome of a consensual appeal process, has subjected the Claimant to any disadvantage or detriment. Since her request was granted by Mr Berelowitz before she was due to return to work following maternity the answer must be no.
17. Mr Quinn's analysis may be said to derive some support from the concept, in unfair dismissal law, of the "vanishing dismissal". We adapt that expression from the heading used by the editors of Harvey on Industrial Relations in dealing with the effect of a redundant employee accepting an offer or re-engagement under s.138 (1) ERA (see vol. 1, division E, paragraph 477).
18. The example of a vanishing (actual) dismissal under s.95(1)(a) ERA in unfair dismissal law, to which we have been taken, is to be found in Roberts v West Coast Trains Limited [2005] ICR 254. There, the claimant was dismissed for misconduct following a disciplinary hearing held on 6 November 2001. He appealed that decision internally. On 5 February 2002, whilst the appeal was pending, the claimant presented a complaint of unfair dismissal to the Employment Tribunal. On 8 February the claimant's appeal was upheld to the extent that the sanction of dismissal was set aside and replaced by demotion and a final written warning. The claimant did not return to work.
19. On those facts the Court of Appeal held that the effect of the appeal outcome was to revive the contract of employment, initially terminated on 6 November, so that the claimant had not been dismissed and therefore the Employment Tribunal had no jurisdiction to entertain his complaint of unfair dismissal (as the Employment Tribunal and Employment Appeal Tribunal had also held). For completeness, we note that the position may be otherwise where the contractual disciplinary procedure requires the employee's consent to the substituted penalty short of dismissal on appeal; see the Judgment of HHJ Burke QC in the unreported case of Saminaden v Barnet, Enfield and Haringey NHS Trust (UKEAT/0018/08. 7 July 2008) a decision which I followed in Piper v Maidstone & Tunbridge Wells NHS Trust (UKEAT/0359/12. 18 December 2012).
20. The third situation relates to fairness of the dismissal. Whereas in assessing the reasonableness of a dismissal the focus must be on the employer's reason for dismissal at that time; he cannot rely on later acquired knowledge of a different "offence" to justify the dismissal; see Devis & Sons Ltd v Atkins [1977] AC 931 (HL), the House of Lords made clear in West Midlands Co-Operative Society Ltd v Tipton [1986] ICR 192 that in determining fairness the Employment Tribunal may take into account what happened on internal appeal. Thus, a failure by the employer to investigate points raised by the employee on appeal may render what was a fair dismissal unfair. Conversely, an appeal properly conducted, whether by way of rehearing or review, may render a procedurally unfair dismissal fair, thereby curing the initial procedural defect (see Taylor v OCS Group Ltd [2006] IRLR 613 (CA)).
21. Stepping aside from the law of unfair dismissal, whilst we have been shown no direct authority on the effect, if any, of an internal appeal on an act of prima facie unlawful discrimination, by way of a late addition to the learning put before us in argument Mr Galbraith-Marten sought to derive some support for his contention that the outcome of the internal appeal is irrelevant to the earlier completed act of unlawful discrimination, on his case, on 17 June 2010, from the Court of Appeal's decision in Cast v Croydon College [1998] ICR 50. He recognises that the appeal outcome may have an effect on remedy but not, he submits, on liability.
22. The issues before the Court in Cast and precisely what was there determined requires close analysis. First, the facts. On 26 March 1992 the respondent college refused the claimant's request to job-share or to work part-time when she returned to work following maternity leave. She returned on 1 March 1993 and on 16 March and 10 May 1993 the respondent again refused further requests by the claimant for flexible working, providing written reasons for their decision on 14 May. On 7 June 1993 the claimant resigned with effect from 6 July 1993. On 13 August 1993 she presented a complaint of unlawful indirect sex discrimination to the Employment Tribunal. We pause to observe that the claim was brought under s.1(1)(b) Sex Discrimination Act as it was then formulated. It has since been amended by statutory regulations in 2001 and 2005 prior to its replacement by the Equality Act 2010. Mr Quinn was right to point out these alterations although, in the event, nothing turns on the amendments.
23. The issue before the Industrial Tribunal, Employment Appeal Tribunal and ultimately the Court of Appeal was whether the complaint was presented in time. In allowing the Claimant's appeal against the decision of the Employment Appeal Tribunal, dismissing her appeal against the Industrial Tribunal's finding that it had no jurisdiction to entertain the complaint, the Court of Appeal held that the various refusals by the respondent to accede to the Claimant's requests for flexible working amounted to an act extending over a period (continuing act), ending with her resignation effective on 6 July so that her complaint presented on 13 August 1993 fell within the primary three-month limitation period.
24. From this unpromising start, the issue was purely one of limitation, Mr Galbraith-Marten has erected a characteristically ingenious argument to the effect that the Court held that the statutory tort was completed, initially on 26 March 1992, and that holding supports his contention in the present appeal.
25. We see from the leading judgment of Auld LJ, with which Robert Walker and Otton LLJ agreed (505G) that the Industrial Tribunal Chairman held that there was a single act of discrimination on 26 March 1992 and that subsequent refusals merely confirmed the original decision. There was no continuing act and it was not just and equitable to extend time. Auld LJ took a different view. He drew a distinction between responses to further requests referring back to the original decision and a series of reconsiderations of that decision. The facts here amounted to the latter, constituting a policy or regime properly characterised as a continuing act rather than a one-off decision subsequently repeated (see Rovenska v GMC [1998] ICR 85). It is unnecessary for present purposes to refer to the updating of that approach in Hendricks v Commissioner of Police of the Metropolis [2003] ICR 530.
26. We shall assume, in favour of the Claimant, that in the present case the statutory tort was prima facie completed when Ms Gowling refused the Claimant's application for flexible working on 17 June 2010. To that extent this case is analogous with Cast. However, the critical distinction on the facts is that in Cast the employer maintained his refusal to grant the employee flexible working. In the instant case Ms Gowling's decision was rescinded by Mr Berelowitz on appeal. Thus the question remains: what is the effect of that appeal outcome?

Analysis

27. We repeat, this case is particularly fact and claim sensitive. We have been shown the Judgment of Employment Judge Cheetham, sitting on the Pre-Hearing Review held on 25 January 2011 to determine, as a preliminary issue, questions of limitation. The issues between the parties appear at paragraph 2 of his Reasons provided with a Judgment dated 18 March 2011. The claim of constructive unfair dismissal relied upon a breach of the implied term of mutual trust and confidence. Three particulars of the alleged breach are given, the first of which is the rejection of her request (by Ms Gowling) for flexible working on 17 June. As to the claim of indirect sex discrimination, the issues were: (a) did the Respondent apply a PCP, namely requiring her to work full-time as a Sales Executive; (b) although disparate impact was admitted by the Respondent the question of personal disadvantage was put in issue (the list of issues does not separately identify the question of detriment under s.6(2)(b) of the Sex Discrimination Act; (c) justification. It follows, as we were told by counsel now appearing before us with junior counsel who both appeared below, that discriminatory constructive dismissal under s.6(2)(b) read with s.82(1A)(b) of the Sex Discrimination Act was not a claim advanced by the Claimant.
28. Employment Judge Cheetham found that the effective date of termination was 19 July 2010 when the Claimant resigned (paragraph 31). The claim form ET1 was presented on 29 October 2010, outside the three-month primary limitation period for both claims. The Judgment held that the Claimant failed to show that it was not reasonably practicable for her to present her unfair dismissal claim within time and that claim was dismissed (paragraph 38). However, applying the different just and equitable "escape clause" to the claim of indirect sex discrimination as formulated he was prepared to exercise his discretion in favour of extending time (paragraph 41(2)). The Claimant's appeal against the Employment Judge's finding in relation to unfair dismissal was considered and dismissed by HHJ McMullen QC on 21 October 2011 (UKEAT/0262/11/JOJ). In that Judgment the EAT upheld the finding below that the effective date of termination was 19 July 2010 (paragraph 32). The indirect sex discrimination claim, as formulated in the Pre-Hearing Review list of issues, was left to proceed alone to the full merits hearing before the Martin Tribunal.
29. Before the Martin Tribunal the issues had been expanded, as appears from paragraph 3 of that Tribunal's Reasons. Critically, it seems to us, the Tribunal was asked, at paragraph 3.5, to determine whether the particular disadvantage relied on by the Claimant as framed at paragraph 3.3.2 applied to her as a result of the application of the PCP alleged, that is that all Sales Executives work full-time.
30. In answering that question the Martin Tribunal concluded (paragraph 33) that the Claimant had not made out personal disadvantage on the facts because Mr Berelowitz agreed (on appeal) that the Claimant could work part-time on a trial basis as she had requested. The Claimant accepted that in hindsight she could have taken up the offer of the trial period and proved the Respondent wrong in having doubts about the efficacy of part-time working in the Sales Executive role. The Employment Tribunal further found that part-time working on a trial basis did not constitute a detriment to the Claimant.
31. Thus, the question arises: was that a permissible approach by the Employment Tribunal? We have concluded that it was.
32. First, we reject the suggestion by Mr Galbraith-Marten (also rejected by the Employment Tribunal at paragraph 31) that the Claimant implicitly withdrew her appeal when she resigned. As the Employment Tribunal put it:

"[…] if the Claimant's appeal had been impliedly withdrawn by her resignation, then why did she attend the appeal hearing? Even if the Claimant had impliedly withdrawn her appeal, her own actions of attending and participating in the appeal reinstated that appeal process. We also take note that appeals are commonly made and held after a contract of employment has been terminated, for example, if there is a dismissal the employee, even though the contract has come to an end, still has the right and the ability to make and participate in the appeals process."

33. Unpacking that reasoning at paragraph 31, in our judgment the fact-situation here resonates with the conclusion of the Court of Appeal in Roberts, except that here the Claimant pursued her appeal and, on the Employment Tribunal's findings, obtained the desired result, namely a return to work following the end of her maternity leave on a part-time basis. In Roberts the claimant was still left with a disciplinary penalty short of dismissal.
34. Secondly, consistent with the approach of the House of Lords in Tipton and the Court of Appeal in Taylor v OCS Group, it is the experience of the industrial members sitting on this appeal that an internal appeal process, consensually pursued, forms part and parcel of the employer's decision-making process. Thus, on the facts of this case, Ms Gowling's decision to reject the Claimant's request for part-time working on her return in the future was expressed to be subject to the Claimant's right of appeal. To that extent her decision was conditional. She exercised that right and succeeded on appeal (cf. Cast). The PCP, full-time working, was not to be applied to her when she completed her maternity leave. She did not suffer personal disadvantage under s.1(2)(b)(ii) nor, we would add, any detriment short of dismissal under s.6(2)(b) of the Sex Discrimination Act. Dismissal was not relied on in this indirect discrimination claim.
35. On this analysis we are satisfied that the Employment Tribunal's approach was not flawed in law. We are not persuaded that the strict contractual approach to curing a repudiatory breach adopted by the Court of Appeal in Buckland causes us to take a different view in the context of an indirect discrimination claim. Accordingly, the Claimant's challenge to the Employment Tribunal's finding of no personal disadvantage fails and is rejected.
36. Having determined the principal argument in the appeal in favour of the Respondent, the remaining issues strictly fall away, although for completeness we simply record that we are not persuaded that the Employment Tribunal fell into error (paragraphs 35 to 37) in their alternative finding that the Respondent established the defence of justification had the Claimant succeeded in showing a prima facie case of unlawful discrimination.
37. It further follows that the two points taken in the Respondent's conditional cross-appeal, that there was a PCP that Sales Executives must work full-time (Reasons, paragraph 29) or that that PCP was applied between her application for flexible working and the outcome of her appeal (paragraph 30) are rendered moot.

Conclusion

38. Accordingly, the Claimant's appeal fails and is dismissed. We make no order on the Respondent's cross-appeal.