The recent case of Little v Richmond Pharmacology confirms that indirect discrimination can, in certain circumstances, be ”cured” by an internal appeal process.
Ms Little requested to return to work flexibly after maternity leave, when her request was refused, she resigned claiming that her employer, a clinical research organisation (the Respondent), had acted unreasonably in denying her the possibility of working hours that suited her childcare arrangements. She appealed the Respondent’s decision but resigned before the appeal could be heard. The Respondent encouraged her to withdraw her resignation and at appeal reversed its own decision allowing her to work part-time on a trial basis. Finding the solution unacceptable, Ms Little chose to allow her resignation to stand and issued a case to an Employment Tribunal claiming constructive unfair dismissal and indirect discrimination. The employment tribunal dismissed her claim saying that the respondent had adequately dealt with both problems at appeal. The Employment Appeal Tribunal (EAT) went on to dismiss her case on appeal.
The EAT considered that had the claimant accepted the three month trial of the part-time arrangement then she would have been in a position to prove to the respondent that the hours were a satisfactory compromise. More to the point, the claimant could have proved that the adjustment in hours was ‘reasonable’ for the purposes of her flexible working requests and made a clear case of indirect discrimination in the face of any refusal to make the arrangement more permanent.
In addition, the EAT was mindful of the approach of the House of Lords in the case of Tipton and the Court of Appeal in Taylor v OCS Group that recognised a consensually followed internal appeal procedure forms ”part and parcel” of an employer’s decision-making process. In other words, the Respondent had not indirectly discriminated against Ms Little by failing to allow her to work flexibly because it had, after appeal, accepted her request.
Whilst it should be noted that the judges on appeal were at pains to point out that the case was ”particularly fact and claim sensitive”, Little v Richmond Pharmacology does, nonetheless, add weight to internal appeal procedures as a mechanism for curing indirect discrimination.