Smith-Twigger v Abbey Protection Group Ltd

An Employment Tribunal may reject a maternity-discrimination claim where the employer’s conduct does not amount to unfavourable treatment or detriment because of maternity leave. There is generally no legal obligation to consult an employee about the expiry of another employee’s unrelated contract, or about the expiry of an agreed temporary flexible-working arrangement.

For indirect discrimination, the claimant must first establish a provision, criterion or practice capable of satisfying Equality Act 2010, section 19. An appellate tribunal may uphold a decision despite defective reasoning where the conclusion is plainly and obviously right on the accepted facts. Time may be extended where just and equitable, but the reason for delay is a particularly important consideration.

The claimant, a solicitor employed by the respondent, worked four days per week under a temporary flexible-working arrangement while a colleague covered Fridays under a one-year fixed-term contract. During the claimant’s second period of maternity leave, the colleague’s contract expired. The claimant later sought further flexible working, which was refused, and resigned.

The Employment Tribunal dismissed claims of maternity discrimination under section 18 of the Equality Act 2010, indirect sex discrimination, constructive dismissal and unfair dismissal. It also rejected the claims as out of time. The claimant appealed, alleging errors concerning detriment, the pleaded PCP, constructive dismissal, inconsistency and binding authority.

1. Appeal dismissed. The Tribunal was entitled to reject the maternity-discrimination claim on the merits. There was no general obligation to inform one employee that another employee’s unrelated contract had ended, nor any legal obligation to consult about the expiry of an agreed temporary flexible-working arrangement. The claimant remained entitled to request further flexible working, and the impetus for that request lay with her.
2. The Tribunal was also entitled to refuse an extension of time. The claimant had not advanced a reason covering the period of delay. Although the Tribunal had not worked through the Keeble checklist and its reasoning was terse, its conclusion was sufficiently explained in the circumstances.
3. The apparent difference between the PCP that the claimant had to work full-time and the requirement that employees work full-time was linguistic rather than material. The Tribunal correctly found that no such general PCP existed, given the evidence that part-time working was permitted and undertaken.
4. The Tribunal made a factual and drafting error in describing the last straw as unidentified. Nevertheless, its conclusion on constructive dismissal was plainly and obviously right. The evidence did not establish dishonesty or bad faith, and the conversation with the colleague broadly represented the contractual position. It was not a fundamental breach of the implied term of trust and confidence, either alone or in combination with earlier matters.
5. Paul v Visa International Service Association was fact-specific and did not require a different result. United Bank Ltd v Akhtar established that an employer must not exercise a contractual discretion capriciously or unreasonably, but the present case was materially different and the Tribunal was entitled to assess the matter as one of fact or mixed fact and assessment.

• Employment Appeal Tribunal: dismissed the appeal from the Employment Tribunal’s decision dismissing the claims.