A Ms Little joined Richmond Pharmacology in 2006 as an evening receptionist. In 2009 she was promoted to the post of full-time sales executive. Richmond operates in a highly competitive marketplace, relying on personal contacts and dealing with the running of pharmaceutical trials.
In September 2009 Ms Little went on maternity leave prior to the birth of her second child. As is often the case in such circumstances she applied for a flexible working arrangement on her return to work in August 2010, specifically Monday to Wednesday, 9.00 a.m. to 3.00 p.m. and remote access when she was at home on Thursdays and Fridays. Her request was rejected on the ground that “it was not feasible for a sales executive to operate on a part-time basis”.
Ms Little appealed the decision but resigned before the appeal hearing was arranged. She was asked to reconsider her resignation until the appeal hearing could take place. The hearing took place three days later and she was offered a three-month trial on the terms she had requested. She refused and confirmed her resignation.
Ms Little brought an employment tribunal claim, alleging constructive unfair dismissal and indirect sex discrimination. The effective date of termination of employment was 19 July 2010 and the claim form was presented on 29 October 2010 so the unfair dismissal claim was out of time. The discrimination claim survived because it was “just and equitable” to allow it to proceed.
Discrimination claims can be both resisted and established on the basis that there is a relevant provision, criterion or practice (PCP) which is applied to a particular job. In this case the relevant PCP was that sales representatives must work full time. That is what she was told when she applied for flexible working. On its face such a requirement would place women at a disadvantage by comparison with men on the basis of disparate impact. However the PCP had been disapplied on appeal, at least to the extent of permitting the three-month trial. Had this “cured” the discrimination resulting from imposition of the PCP?
In Little v Richmond Pharmacology Ltd, the Employment Appeal Tribunal (following the Employment Tribunal) agreed that it had. While there had been indirect discrimination, in that the employer had imposed a PCP by insisting that she must work full time the employer had been saved by granting her request on appeal because Ms Little could not show that she had suffered any personal disadvantage. Further, the original decision was subject to appeal – and so was conditional. As a result of the successful appeal the PCP was not applied to her – or rather would not have been if she had not resigned. Essentially, albeit on appeal, Ms Little had got what she had requested. She accepted that in hindsight she could have taken up the offer of the trial period and proved the employer wrong in having doubts about the efficacy of part-time working in the sales executive role.
The decision is a useful reminder to employers that an effective appeals process can cure many ills – see the comment of the Employment Appeal Tribunal that:
…it is the experience of the industrial members sitting on this appeal that an internal appeal process, consensually pursued, forms part and parcel of the employer’s decision making process.