Facts
Mrs Shaw was employed by CCL Ltd (CCL) as an area sales executive. In April 2004 she commenced maternity leave and in November 2004 she sent an e-mail to CCL stating that she would like to return to work on a part-time basis, that she did not want to work more than 100 miles from home and that she would no longer be able to stay out overnight on business.
CCL acknowledged the e-mail and asked Mrs Shaw to complete a flexible working application form. Mrs Shaw's application and subsequent appeal were refused by CCL. She resigned, claiming that the refusal of her request was unreasonable and that she had no option but to resign. She lodged claims in the employment tribunal for a range of discriminatory acts and constructive dismissal.
The employment tribunal upheld the majority of Mrs Shaw's claims. In particular, it found that in failing to allow her to return to wok part-time, CCL was liable for direct sex discrimination.
It was also liable for indirect sex discrimination in imposing a requirement on her to work full-time on returning to work after maternity leave, which could not be justified.
However, the tribunal rejected her claim for constructive unfair dismissal. It accepted that Mrs Shaw resigned because her flexible working request was refused. However, it found that because CCL was not obliged to accept her request, it did not breach her employment contract when it was rejected. Mrs Shaw appealed to the EAT.
EAT’s findings
The EAT accepted that a breach of the SDA can give rise to a claim for constructive dismissal. In reaching this conclusion, it noted that the Courts had already ruled, in the context of disability discrimination, that acts of discrimination were capable of breaching the implied term of trust and confidence.
The EAT shied away, however, from deciding whether in every case, a finding of direct or indirect discrimination always constitutes a fundamental breach of contract.
Assessing whether there had been a constructive dismissal in this particular case, the EAT accepted that Mrs Shaw’s treatment in the form of direct and indirect discrimination did constitute a failure to carry out the duty to maintain trust and confidence between the parties.
The flat rejection of Mrs Shaw’s case because she was a woman, and the application of a condition which adversely impacted upon women, was capable of amounting to, and in this case was, a fundamental breach of contract. Mrs Shaw resigned promptly and the reason for it was the rejection of her application. She had therefore been constructively dismissed.
Comment
Case law already existed whereby breaches of the Disability Discrimination Act 1995 were found to amount to fundamental breaches of employees’ contracts of employment, entitling them to resign.
The practical point to take away from this case is that although there is no right to return to work on a part-time basis, refusal of such a request may amount to unlawful sex discrimination, which in turn may enable the employee to resign and claim constructive unfair dismissal.
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