Successful Appeal Avoided Indirect Sex Discrimination

An employee who appealed successfully against her employer's initial refusal of her request to work part-time had not suffered indirect sex discrimination. The subsequent granting of her request on appeal meant she had suffered no disadvantage.   

In Little v Richmond Pharmacology, L was a sales executive for a clinical research organisation operating in a highly competitive marketplace.  She went on maternity leave in September 2009 and on 12 April 2010 submitted a flexible working application to work part-time hours on her return in August. This was rejected on 17 June on the basis that sales executives needed to work full time, but the decision was expressly stated to be subject to appeal. L submitted an appeal against the refusal on 9 July and resigned on 19 July. The appeal hearing took place on 22 July and her request was agreed on a trial basis. 

L refused to return to work and claimed indirect sex discrimination. The employment tribunal rejected her claim, finding that L suffered no disadvantage in the light of the appeal decision. 

The EAT agreed.  L had not suffered any disadvantage or detriment because her part-time working request had been granted on appeal. The internal appeal process is to be regarded as part of the employer’s decision-making process. The decision to refuse the request was subject to the right to appeal and to that extent was conditional. In the same way that a properly conducted appeal can render an otherwise unfair dismissal fair, on the facts of this case, the success of L’s appeal rendered the original decision refusing her request void.   L did not suffer any disadvantage or detriment as the requirement that she work full-time would not be applied to her until her return from maternity leave. 

The decision in this case turned on the fact that L was not at work at the time the request was made and so did not suffer any disadvantage as a result of the initial refusal of her flexible working request. The EAT was keen to emphasise that discrimination cases are fact-specific.  The result may well have been different had the employee been at work at the time the request was made. In that scenario the refusal of her part-time working request would have an immediate impact - she would have to continue working full-time.  This means that she will suffer a detriment, even if only for a short period of time until the appeal takes place.  Whilst discrimination may be made out in such a case,  a reversal of the decision on appeal could serve to reduce the amount of compensation due to the employee.