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12 January 2014

Maternity leave and flexible working hours

In a ruling which underlines the fact that discrimination cases are particularly ‘fact sensitive’, a sales executive whose request for flexible working on her return from maternity leave was initially refused by her employer, but then granted on appeal, has lost her claim of indirect sex discrimination (Little v Richmond Pharmacology Limited).

Ms Little, who was employed by clinical research company Richmond Pharmacology Limited as a full-time sales executive, had requested permission to work reduced hours, three days a week, on her return from maternity leave. She tendered her resignation after her line manager refused the request on the basis that, given the intensive one-on-one service the company provided to its clients, it was not feasible for a sales executive to work part time.

That same day, the company asked her to reconsider her decision to resign and Ms Little subsequently participated in an appeal hearing which resulted in an offer that she be permitted to work part time on the terms she had suggested for a three-month trial period. She did not take up the offer, however, and confirmed her resignation.

The Employment Tribunal (ET) dismissed Ms Little’s claim of indirect sex discrimination on the basis that, given the success of her internal appeal, she had suffered no personal disadvantage or detriment. The requirement that sales executives must work full time was justified by the way in which the company operated and had in any event been disapplied by the appeal decision.

Ms Little appealed against the ET’s ruling, arguing before the Employment Appeal Tribunal (EAT) that the tort of indirect sex discrimination had been completed by her line manager’s initial refusal to allow her to work part time and could not be ‘cured’ by her subsequent successful appeal.

The EAT dismissed the appeal. Instead of resigning, Ms Little could have taken up Richmond Pharmacology’s reasonable offer of a three-month trial period working fewer hours. Despite having earlier tendered her resignation, she had participated in the appeal process, which had delivered the result that she desired.

Ms Little’s line manager’s initial refusal of a part-time return to work was conditional in that it was expressed to be subject to her right of appeal, which she had successfully exercised. In the circumstances, she had suffered no personal detriment and her claim had rightly been rejected.

If you receive a request from an employee for flexible working and are unsure of your position, the employment team at B P Collins can advise you on your individual circumstances. Please contact us via employmentlaw@bpcollins.co.uk or call 01753 278659. 

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