Employment tribunal and court judgments | September 2021

£185,000 award for failing to accommodate flexible working request

In Mrs A Thompson v Scancrown Ltd T/a Manors, a London estate agent sales manager, Mrs Thompson's made headlines after the Respondent, her former employer, was ordered to pay £184,961.32 as compensation for indirect sex discrimination.

Following her return from maternity. Mrs Thompson asked her employer to finish at 5pm each day and work four days a week. She understood her pay would reduce as a result. Her employer was inflexible and insisted on their strict policy that a sales manager must work full-time, 9am-6pm, Monday to Friday. The Tribunal concluded this policy placed women at a disadvantage because women are more likely to be primary carers than men and therefore need to accommodate school and nursery pick-ups and drop-offs.

Under the Equality Act 2010, policies or rules that put a group of people with a protected characteristic at a disadvantage are discriminatory unless they can be shown to be a proportionate means of achieving a legitimate aim. The strict requirement to work full-time, 9am-6pm, Monday to Friday could not be justified by the Respondent as a proportionate means of achieving its stated business aim of 'maintaining successful relations with customers'. The Tribunal therefore concluded that although the Respondent would probably need to reallocate work among the team and possibly recruit a junior staff member to provide cover for one day a week, it was reasonable to accommodate Mrs Thompson's request and possible to do so without damaging client relationships. 

This case is an important reminder of the risks of discrimination claims or dismissal claims associated with flexible working requests. Being mindful also of the fact that if a request is refused but the decision is found to be discriminatory, it is likely that this will be held to be a fundamental breach of contract, entitling an employee to resign in response to that breach and claim constructive dismissal.

Redundancy dismissal is not unfair through lack of appeal alone

In Gwynedd Council v (1) Barratt (2) Hughes the Court of Appeal held that there is no general rule that a dismissal on the grounds of redundancy without an appeal must be unfair. Instead, an absence of an internal appeal will be considered as a relevant factor when looking at the overall test of fairness in redundancy dismissal cases.

The Claimants were both teachers of Physical Education and dismissed upon the school’s closure. The Claimants applied and were interviewed for roles in a new school to which they were unsuccessful. The Council told the Claimants there was no opportunity to appeal and even if there had been it would not have altered the outcome of the redundancy. The Claimants both brought claims for unfair dismissal against Gwynedd Council because they were given no opportunity to appeal, amongst other reasons. Their claims succeeded before the Employment Tribunal and Employment Appeal Tribunal, however the Council appealed to the Court of Appeal.  

The Court of Appeal held that the absence of an internal appeal would not automatically make a redundancy dismissal unfair however, a tribunal must have regard to all the relevant circumstances. Such relevant circumstances include any appeals process, consultation undertaken or whether staff could raise a grievance about the process.  

This case demonstrates that it remains good practice to allow employees to appeal a dismissal for redundancy however the decision may be of some comfort if you are carrying out large-scale redundancies and consider an appeals process to be unduly time consuming and onerous particularly  where significant consultation has already taken place.

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