M Glover v Lacoste UK Ltd & Anor

A determination of a flexible-working application can itself apply a provision, criterion or practice for indirect-discrimination purposes. An employee need not first return to work and attempt to comply with the proposed pattern.

Where an initial decision is expressly provisional and subject to an internal appeal, the appeal determination may be the decision which applies the PCP. That does not mean that a final discriminatory decision disappears merely because the employer later reverses it. A reversal after the appeal process has concluded is a reversal of an existing decision.

The questions of application of a PCP, group disadvantage, individual disadvantage and detriment under the Equality Act 2010 remain distinct, though they may overlap.

The claimant, an assistant store manager returning from maternity leave, requested a fixed three-day working pattern. The employer’s appeal decision instead offered four days’ work on a fully flexible basis, including any day of the week. It described that decision as final.

After the claimant’s solicitors sent a letter before action, the employer accepted her original request before she returned from furlough. The employment tribunal rejected her indirect sex-discrimination claim, holding that the flexible-working PCP had never been applied because she had not been required to work it. It also made findings on group disadvantage, justification and a provisional injury-to-feelings award.

The claimant appealed. The central issue was whether the final appeal decision had applied the PCP despite its later reversal.

1. Appeal allowed. The employment tribunal misread Little v Richmond Pharmacology Ltd. The relevant question was not whether the claimant had returned to work and attempted the proposed flexible pattern. The determination of a flexible-working application can apply a PCP and cause disadvantage or detriment at that point.

2. In Little, the original refusal was expressly subject to appeal. On its particular facts, the appeal determination was the point at which the employer’s decision became final. It was not authority that an employee must attempt to work the disputed pattern before a PCP can be applied, nor that an otherwise completed discriminatory decision vanishes on a later reversal.

3. Here, the appeal decision was final and required the claimant to work four flexible days. The employer’s later acceptance of her preferred arrangement, following a letter before action, reversed a previous decision rather than completing an appeal process. There was only one possible conclusion: the flexible-working PCP was applied at the appeal determination.

4. Individual disadvantage and detriment required factual assessment and were remitted. The tribunal was to apply the established broad detriment test. The EAT observed that it was difficult to see why an employee who considered resignation after an adverse final appeal decision would suffer no disadvantage or detriment, but left that issue to the tribunal.

5. The finding of group disadvantage was unsafe because it rested partly on judicial notice concerning nursery places without giving the respondent a proper opportunity to address that specific issue. Judicial notice of childcare difficulties may be available, but the opposing party must be able to make submissions on the matters relied upon. The injury-to-feelings assessment was also unsafe because the relevant disadvantage and detriment had not been determined.

6. All live issues concerning the appeal decision were remitted to a newly constituted employment tribunal. The second respondent, who had not made that decision, was dismissed from the claim.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the remaining issues concerning the appeal decision to a newly constituted employment tribunal: [2023] EAT 4.
• Employment Tribunal: Employment Judge Goodman, sitting with lay members, rejected the indirect sex-discrimination claim in a judgment sent on 28 March 2022. The EAT held that its finding that the PCP had not been applied was erroneous in law.