Miller v Bellway Homes Ltd

In an indirect sex discrimination claim, an employer must objectively justify a requirement for full-time work by balancing its business reasons against the disadvantage caused to the claimant. A perversity appeal faces a high threshold and cannot be used to retry factual issues or challenge an employment tribunal’s evidence-based balancing exercise.

In assessing loss after dismissal, the tribunal must consider all material evidence bearing on causation, including whether alternative employment was likely to end because of economic circumstances. A failure to consider that factor may require remission. A reduction under Employment Act 2002, section 31, lies within the tribunal’s discretion where failure to appeal internally may have significantly affected the outcome.

The claimant worked part-time after maternity leave. Following a redundancy exercise, a vacant Field Sales Manager position became available, but the respondent required it to be performed full-time. The claimant was dismissed when she could not agree to the required hours.

The Employment Tribunal found indirect sex discrimination and unfair dismissal. In its remedy judgment it treated the claimant’s loss of earnings as ending when she resigned from subsequent employment and reduced compensation by 25 per cent under section 31 of the Employment Act 2002. The respondent appealed on liability. The claimant cross-appealed on liability and appealed on remedy.

1. Liability appeal dismissed. The Employment Tribunal correctly identified the critical issue as whether the respondent could objectively justify the full-time working requirement, balancing its business reasons against the detriment suffered by the claimant. Its findings that the Field Sales Manager role was not shown to require full-time work were supported by the evidence. The respondent’s perversity arguments sought to reopen factual questions and did not overcome the high threshold identified in Yeboah v Crofton [2002] IRLR 634.
2. The tribunal had correctly directed itself by reference to British Airways Plc v Starmer [2005] IRLR 862. Since the full-time requirement was not objectively justified, the related unfair dismissal finding also stood. The conditional cross-appeal on liability therefore required no consideration.
3. Remedy appeal allowed in part. The tribunal was required to consider whether the claimant left her subsequent employment voluntarily to pursue other opportunities or whether that employment would have ended in any event because of difficult market conditions. That potentially material factor was not addressed in the reasons. The causation issue was remitted to the same Employment Tribunal, applying the principles discussed in Whelan v Richardson [1998] ICR 318 and Dench v Flynn [1998] IRLR 653.
4. The challenge to the 25 per cent reduction under section 31 of the Employment Act 2002 failed. The tribunal was entitled to reject the claimant’s explanation for not appealing internally and to find that an internal appeal might have materially affected the outcome, including by enabling consideration of a trial period in the part-time role. The reduction was within the statutory discretion.
5. The respondent’s liability appeal was dismissed. No order was made on the claimant’s liability cross-appeal. The remedy appeal succeeded on the causation issue only.

• Employment Appeal Tribunal: The respondent’s liability appeal was dismissed. No order was made on the claimant’s conditional liability cross-appeal. The claimant’s remedy appeal succeeded on the cut-off date for loss of earnings, and that issue was remitted to the same Employment Tribunal.
• Employment Tribunal: The tribunal found indirect sex discrimination and unfair dismissal, awarded remedy subject to a causation finding, and reduced compensation by 25 per cent under section 31 of the Employment Act 2002.