Veitch Penny LLP - Exeter | Crediton, Devon

Case

Clarke v Telewest Communications Plc
Employment Appeal Tribunal

Issues

The Issues

(1)Indirect Sex Discrimination
(2)Constructive Unfair Dismissal
(3)Sensible working relations

Facts

Deborah Clarke had been employed in 1997 as an operations representative for Telewest in Dudley. She was contracted to work 37.5 hours per week which could include Saturdays and Sundays.

She started Maternity Leave in May 2003 and made an application to change her hours on 31st July. She was due to return to work in January 2004. She did not receive a response from the company within the specified 28 day period. A meeting was set up for 29th September in which her request for flexible working was rejected. An appeal meeting was arranged for December although it is clear that a decision had already been made by the Employer as Ms Clarke was handed a letter before the hearing took place, rejecting her request.

As a result Ms Clarke was forced to resign and she submitted her letter of resignation on 11th December 2003. Ms Clarke made claims at the Employment Tribunal of indirect sex discrimination, constructive unfair dismissal and for breach of the flexible working regulations.

Decision

Ms Clarke was successful in her claims at the Employment Tribunal. It was held that Telewest had made a number of procedural errors in handling her application. It failed to apply promptly to her initial request, it did not provide written reasons for the decision to refuse the change, and by rejecting her appeal by letter two days before the Appeal Hearing was to take place. This evidence pointed to Telewest having made the decision before properly considering the merits of her request. This contributed to the finding of indirect sex discrimination and constructive unfair dismissal.

Comments

Following the case of Hardys & Hansons Plc v Lax (previously reported in these bulletins), this case further demonstrates the importance of employers dealing with flexible working requests on a proper and thorough basis. An Equal Opportunities Commission Report has suggested that 45% of pregnant working women have been subjected to pregnancy related discrimination.

It is therefore important for employers to be flexible in their approach and to be familiar with the proper procedure for flexible working requests. Investigations of such requests must be undertaken thoroughly and transparently. Furthermore, it would be advisable to maintain regular communication with employees throughout their maternity leave.

Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it