Veitch Penny LLP - Exeter | Crediton, Devon

Case

Shaw v CCL Limited
Employment Appeal Tribunal - 22 May 2007

Issues

(1) Sex discrimination
(2) Constructive dismissal
(3) Flexible working

Facts

Mrs Shaw was employed by CCL Limited in 2002 as an area sales executive. She became pregnant and duly advised her employer. She started her maternity leave in April 2004.

Later that year she made a request for flexible working, asking to be able to return from her maternity leave on a part time basis. She indicated that she would like maximum of fourteen hours per week although she was flexible as to the days in which they took place. She said she wanted to be no more than one hundred miles from her home and would not be required to stay out over night.

At her employers request she completed the flexible working application form issued by the DTI. She completed the form and submitted it to her employers for consideration. Her application was refused by the employer due to perceived staffing difficulties the proposal created. Thereafter, Mrs Shaw resigned.

She brought claims of constructive unfair dismissal and discrimination on grounds of her sex.

At first instance the majority of her claims were successful. The Tribunal found that there had been direct sex discrimination in the employers failure to allow her to return to work on a part time basis and also that she had been subjected to indirect sex discrimination by the employer’s requirement that Mrs Shaw had to return to work full time. They had been unable to objectively justify that requirement.

However, in relation to her complaint of constructive dismissal she was unsuccessful. The Tribunal concluded that she had resigned because the company had refused her application for flexible working. It felt that as the company was not obliged to accept her request for flexible working then that refusal could not represent a sufficiently serious breach of her employment contract entitling her to resign.

Mrs Shaw appealed that decision to the Employment Appeal Tribunal (EAT) arguing that the acts of discrimination identified by the Tribunal (and upon which she was successful) as a whole represented a fundamental breach of the implied contractual term of trust and confidence between employer and employee entitling her to resign and claim constructive dismissal. She argued that any act of discrimination was a breach of the implied term of trust and confidence. Alternatively, the breach in the present case leading to her resignation was the particular acts of discrimination as a whole.

Decision

The EAT found that the Tribunal had been incorrect in dismissing Mrs Shaw’s claim of constructive dismissal.

It did not agree that any act of discrimination must be a fundamental breach of contract.

However, in this case, the discrimination to which Mrs Shaw had been subjected constituted a failure on the part of the employer to maintain trust and confidence between the parties and was sufficient to breach the contract of employment entitling her to resign. Consequently, a finding of unfair dismissal would be substituted for the Tribunal’s finding on constructive dismissal.

Comments

This is a useful reminder of the importance of considering an application for flexible working carefully. Whilst an employee does not have the right to flexible working, an application must be considered thoroughly and properly so as to avoid a claim for breach of the right to request itself, but also sex discrimination and/or constructive unfair dismissal.


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

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.