M Glover v Lacoste UK Ltd & Anor

The Employment Appeal Tribunal allowed the claimant's appeal and remitted the case to a newly constituted employment tribunal because the tribunal below erred in law in its conclusion that a provision, criterion or practice (PCP) requiring fully flexible part‑time working had not been applied. The EAT held that the determination of the flexible working appeal constituted the application of a PCP for the purposes of section 19 of the Equality Act 2010 and that the tribunal had misread Little v Richmond Pharmacology Ltd. The EAT also found the tribunal's finding of group particular disadvantage unsafe because the respondent had not been given an opportunity to make submissions on the childcare issues relied upon, and it concluded that the second respondent should be dismissed from the claim because he did not make the appeal decision.

Background and parties:

• The claimant was employed as an assistant store manager and worked 39 hours per week before maternity leave. She requested a three‑day week and the employer initially rejected that request. On appeal within the employer's processes an offer was made of four days per week on a fully flexible basis, subject to a six‑month trial and a statement that the appeal decision was final. After solicitors wrote threatening proceedings, the employer later acceded to the claimant's original request and she returned on the three‑day pattern.

Nature of the claim and procedural posture:

• The claimant brought claims alleging breach of the flexible working provisions of the Employment Rights Act 1996 (the flexible working complaint being later withdrawn) and indirect sex discrimination under the Equality Act 2010 (section 19). The employment tribunal (Employment Judge Goodman) rejected the indirect discrimination claim, finding that a PCP requiring fully flexible working had not been applied and that, even if it had been, it would not have been justified. The claimant appealed to the Employment Appeal Tribunal.

Issues framed:

• Whether the tribunal erred in law in concluding that the PCP was not applied because the appeal decision had been reversed before the claimant was required to work under the new pattern.
• Whether the tribunal applied the correct test for detriment (relying on Keohane and Shamoon), and whether the tribunal was entitled to find group particular disadvantage without giving the respondent an opportunity to address specific childcare issues.
• Whether the second respondent should remain a party.

Reasoning and decision:

• The EAT analysed section 19 of the Equality Act 2010 and authorities including Little, Cast, Meade‑Hill and Warburton on the meaning of "applies" and "detriment". The EAT concluded that Little is authority for the proposition that the determination of an application for flexible working can amount to the application of a PCP. The tribunal below had misinterpreted Little by treating the PCP as only applied if the claimant actually returned and attempted to work the new pattern. On the facts of this case the EAT considered that the only possible conclusion on one issue was that the PCP was applied at the appeal determination and remitted the question of whether the claimant suffered disadvantage/detriment to the employment tribunal for redetermination.
• The EAT regarded the tribunal's finding of group particular disadvantage as unsafe because it relied on judicial notice of childcare availability without giving the respondent a proper opportunity to respond; that issue must be remitted. The EAT also considered the award for injury to feelings unsafe for want of a proper factual determination of disadvantage/detriment.
• Because the second respondent did not make the appeal decision, he was not a proper named respondent and was dismissed from the claim.

Remedy: The appeal was allowed and the matter remitted to a newly constituted employment tribunal to determine the outstanding issues, including whether the PCP put the claimant at a disadvantage and, if so, remedy and injury to feelings.

Appeal allowed. The EAT held that the employment tribunal erred in law by treating the PCP as not applied because the internal appeal decision had later been reversed after a letter before action; the determination of the appeal constituted the application of the PCP for the purposes of section 19 Equality Act 2010. The EAT remitted the remaining issues (including whether the claimant suffered disadvantage/detriment, group particular disadvantage and injury to feelings) to a newly constituted employment tribunal and removed the second respondent from the claim.

Appeal from the judgment of Employment Judge Goodman sitting with lay members after a hearing on 24–25 March 2022; the employment tribunal judgment was sent to the parties on 28 March 2022. The appeal was determined by the Employment Appeal Tribunal, neutral citation [2023] EAT 4 (judgment handed down 2 February 2023).