Little v Richmond Pharmacology Ltd

Where an employer initially refuses flexible working but provides a consensual internal appeal, the appeal forms part of the decision-making process. If the appeal grants the requested arrangement before the employee is due to return to work, the initial refusal may not cause personal disadvantage or a detriment for the purposes of indirect sex discrimination. The question is fact-sensitive and depends on the employee’s claim, the conditional nature of the initial decision and the outcome of the appeal. A successful appeal may therefore prevent liability, rather than merely affect the remedy. The contractual approach to curing repudiatory breach in constructive dismissal cases does not require a different result in an indirect discrimination claim.

Ms Little appealed against the Employment Tribunal’s dismissal of her claim that Richmond Pharmacology Ltd indirectly discriminated against her on grounds of sex by requiring sales executives to work full-time. Her flexible-working request, made before her return from maternity leave, was refused by her line manager but upheld on appeal on a three-month trial basis.

The Employment Tribunal found that the appeal meant Ms Little suffered no personal disadvantage and no detriment. It also held, in the alternative, that the full-time working requirement was justified. The central issue before the Employment Appeal Tribunal was whether the successful internal appeal affected liability for the earlier refusal.

1. Appeal dismissed. The Respondent’s conditional cross-appeal was rendered moot, and no order was made on it.
2. An internal appeal which is consensually pursued forms part of the employer’s decision-making process. Where the initial refusal is expressed to be subject to appeal, its legal effect must be assessed together with the appeal outcome.
3. On the facts, the Claimant pursued the appeal after resigning and obtained the requested part-time working arrangement before she was due to return from maternity leave. The full-time working PCP was therefore not to be applied to her on her return. The Employment Tribunal was entitled to conclude that she suffered no personal disadvantage under section 1(2)(b)(ii) of the Sex Discrimination Act 1975, and no detriment short of dismissal under section 6(2)(b).
4. The contractual reasoning in Bournemouth University v Buckland concerning an employer’s inability to cure a repudiatory breach did not require a different conclusion in the context of indirect discrimination. The situation was closer to the effect of a successful appeal considered in Roberts v West Coast Trains Limited, while Cast v Croydon College was distinguishable because the employer there maintained its refusal.
5. For completeness, the Tribunal had not erred in its alternative conclusion that the Respondent established justification. The cross-appeal challenges to the existence and application of the PCP were consequently moot.

• Employment Appeal Tribunal: dismissed the Claimant’s appeal from the Employment Tribunal’s judgment promulgated on 29 June 2012. The Respondent’s conditional cross-appeal was left without determination because the issues had become moot.
• London (South) Employment Tribunal: dismissed the indirect sex discrimination claim, finding no personal disadvantage or detriment and, alternatively, that the PCP was justified.