[1]The claimant’s claim against the first respondent succeeds in part. The following complaints are well founded and succeed: 1.1. indirect sex discrimination contrary to section 19 and 39 of the Equality Act 2010; 1.2. detriment done for a prescribed family leave reason contrary to section 47C of the Employment Rights Act 1996; 1.3. unfair dismissal contrary to sections 94 and 98 of the Employment Rights Act 1996.[2]The following complaints against the first respondent under the Employment Rights Act 1996 are not well founded and fail: 2.1. breach of the right to request flexible working under sections 80F to 80H; 2.2. failure to provide a written statement of change under section 4; 2.3. automatic unfair dismissal contrary to section 104.[3]The complaints against the second, third and fourth respondents fail and are dismissed. 1 of 37
REASONS
Conclusions
[1]The claimant was employed by the first respondent as a customer services agent at Heathrow from 1 February 2016 until 4 December 2021. The first respondent provides ground handling services for commercial airlines. The second, third and fourth respondents were employees of the first respondent at the material times.[2]The claim arises from the claimant’s requests for flexible working and taking time off for dependants. She complains of breach of the right to request flexible working, detriment for taking time off for dependants, indirect sex discrimination, constructive unfair dismissal and automatic unfair dismissal for assertion of a statutory right.[3]The claim form was presented on 3 March 2022. The respondents defend the claim.[4]At the start of the hearing before us, Mr Appleton, one of the tribunal members, and Mrs Appleton, one of the respondents, confirmed that they do not know each other and are not as far as they know related.[5]The respondents provided an opening note, an authorities bundle and a cast list and chronology. The chronology was agreed by the claimant, subject to two additions. Mr Zaidi also provided a note of authorities.[6]The parties had prepared a bundle of documents with 395 pages. The parties resolved an issue about additional documents between themselves; the respondents agreed that in 2020 the claimant made 10 or more applications for annual leave to be taken in 2021, and in light of that agreement there was no need to add any additional documents to the bundle.[7]The issues for us to determine were identified at a preliminary hearing on 8 November 2022. We discussed the list with the parties at the start of the hearing, and clarified some points as identified in the amended list of issues which is included in the appendix to this document. The parties agreed that the amended list contains the issues for us to determine. We decided that because of the complexity of issues, and the time available, this hearing would deal with liability only, and another hearing would be arranged to decide remedy if needed.[8]Mr Wallace made an application to strike out the complaints of breach of the right to request flexible working. For reasons given at the hearing, we refused the application. In short, we decided that it was appropriate to hear all the evidence before deciding whether the claimant had made a request which met the statutory requirements. 2 of 37[9]After dealing with these preliminary matters we heard evidence from Mrs Zaidi and from all three individual respondents. All had produced and exchanged witness statements.
The Issues
[10]After the evidence, Mr Wallace and Mr Zaidi both produced written closing comments documents and made oral submissions.[11]There was insufficient time within the four-day allocation for us to make our decision and tell the parties. We reserved judgment and arranged a deliberation day for the panel. The judge apologises to the parties for the delay in sending out the reserved judgment, this reflects the complexity of the issues to be decided in this case, and the current workload in the tribunal.
Findings of fact
[12]This section explains our decision about what happened. Where there is a dispute between the parties about a factual matter, we decide what is most likely to have happened, by reference to the evidence we heard and the documents we read. We include here our findings about the facts which are relevant to the issues we have to decide.[13]The first respondent provides ground handling services for commercial airlines.[14]On 13 January 2016, an offer of employment was sent to the claimant. She signed a statement of terms and conditions of employment on 28 January. Her start date was 1 February 2016, and she was a customer services agent at Heathrow. Her contract said she worked 20 hours per week over a rostered shift pattern (page 125).[15]The majority of the respondent’s customer service agents work on rotating shift patterns, for example over a 12 week period. Flexible working application in 2017[16]On 6 July 2017, the claimant made a request for flexible working which was granted; she moved to a four on, two off roster pattern on Singapore Airlines, working early shifts only. This change was confirmed in a letter (pages 128 to 130). The letter said that the claimant would have 5.30am and 7am start times. It said the change would be reviewed in six months and the right to review the agreement in the event of a significant change in workload or loss or gain of contracts was reserved. The claimant initially worked the new pattern without any difficulties. No formal six-month review of the arrangement was carried out.[17]During the pandemic, the respondent had to re-roster shifts with short notice. An example of this occurred in the claimant’s case in October 2020 when her shifts were changed to late shifts with a little over a week’s notice (page 137). The claimant contacted HR to ask them to help because the 3 of 37 pattern was outside her agreed flexible working arrangement and she was unable to work the late shifts.[18]In January 2021, there were some more communications between the claimant’s duty manager and the respondent’s HR team about whether the claimant had a flexible working arrangement to work early shifts only. HR confirmed to the claimant’s manager that she did. This exchange of communications was prompted by the claimant telling her manager that late shifts were outside her contracted hours, after late shifts had been included in her roster on some occasions (pages 139-141).[19]On 2 April 2021, the claimant took a day’s emergency leave and had a return to work interview when she went back to work (page 145). By ‘emergency leave’, the parties meant time off to care for dependants. We have referred to this in these reasons as ‘dependants’ leave’. The claimant also took two one-day periods of dependants’ leave on 6 August 2021 and 16 September 2021. There was no record of return to work meetings being held on those two occasions.[20]On 12 April 2021, the claimant emailed HR about her flexible working arrangement. She had again been rostered for late shifts which she was unable to work and which were not in line with her permanent early shifts arrangement.[21]On the following day, 13 April 2021, a duty manager said he would put the claimant on dependants’ leave because she was unable to work the shift that she had been rostered (page 147).[22]On 15 April 2021, in response to a question asked by the claimant, HR emailed the claimant to confirm that she had a flexible working arrangement for early shifts only. However, they said that this arrangement was no longer possible on Singapore Airlines. Only full time customer service agents had been working on that contract during covid. The claimant was told that she would be moved to Turkish Airlines so that she could stay on her agreed early shifts only arrangement (page 149).[23]This arrangement worked fine for the next few months. Flexible working application on 13 August 2021[24]On 13 August 2021, the claimant made another request for flexible working (page 158). The request was dated 12 August 2021 but attached to an email sent on the morning of 13 August 2021. The request was prompted by the claimant’s oldest child being due to start school in September 2021 and was to enable the claimant to drop her off at school. The claimant’s request was headed “Statutory request for flexible working” and set out the change she was seeking (later start and finish times), the date when she wanted it to start, and the date on which she made a previous request. The request did not mention anything about the effect of the proposed change on the employer or how this might be dealt with. 4 of 37[25]Iain Potter, a resource planning manager, responded to the claimant’s request. Mr Potter’s role was to prepare the rosters for customer service assistants. He did this manually, not using software or other automated system. There were hundreds of CSAs, a little over half of whom worked part time. The respondent’s practice when designing rosters was to include 10% more staff than required, to cover for sickness and other unexpected absences.[26]In his request, Mr Potter asked the claimant whether she was willing to reduce her hours and change to a different airline if that was required to accommodate her request. The claimant said she was willing to do so (pages 156-157). There was an exchange of emails between the claimant and Mr Potter on 25 and 26 August 2021, and they agreed the change of hours with a move to Middle East Airlines. The claimant was to work shifts starting at 9.15am which would give her enough time to drop her daughter at school. The claimant did not mention in this exchange of emails anything about the effect of the proposed change on the employer or how this might be dealt with.[27]The claimant asked whether this change of hours required a new contract but Mr Potter did not reply to this question (pages 159-161). Although the claimant’s initial email had been headed “Statutory request for flexible working” the respondent did not treat her email as a formal request. Mr Potter’s view was that, as he could accommodate the request, it was not necessary to go through the formal process (page 229).[28]The claimant worked the new agreed hours for about four weeks until 27 September 2021 when Mr Potter emailed her to say that, under the new winter schedule, the time of the flight she was working on was to change and that a shift timing adjustment would be required to 8am. The claimant’s new shift would be from 8am in the morning to 1.30pm in the afternoon.[29]The claimant replied to say that those hours would be impossible for her. She emailed again on 3 October to say that she was unable to do 7am starts which she had been rostered (pages 163-167).[30]On 21 October 2021, Mr Potter prepared a proposed 12 week rotating roster for part-time Customer Service Agents for the winter schedule on Middle East Airlines, Iran Air and Sri Lanka Air. He invited the team to contact him if there were any issues or queries with the proposed roster (pages 169-170).[31]The claimant replied on 29 October to say again that she could not do 7am starts. She offered to work weekends.[32]On 1 November, she emailed again to say that she was still rostered to start at 7am the following day and to ask what she should do (pages 174-173).
The law
[33]In his reply, Mr Potter said that the permanent early shifts starting at 9.15am no longer had any operational validity because of the clock change. He said the only possible early shifts that the claimant could work would be a Singapore Airlines flight starting at 5.30am or a Turkish Air flight starting at 5 of 37 7am. (The Middle East Airlines flight that the claimant used to work on which allowed her to start at 9.15am and which would have required an 8am start under the winter schedule was no longer available.)[34]The claimant replied to propose an alternative suggestion of working for fixed days instead. She said she could start work earlier if her days were Thursday, Friday, Saturday and Sunday. This working arrangement would be possible for her because her husband could ask to work from home on Thursday and Friday so that he could drop their daughter at school. He was not working on Saturdays and Sundays. This meant that the claimant could start work earlier on those four days. Flexible working application on 1 November 2021[35]On 1 November 2021, Mr Potter sent the claimant a flexible working application form and she completed it, asking for a fixed days arrangement for Thursday, Friday, Saturday and Sunday only. The form included a box about the impact of the new working pattern and how any negative impacts can be mitigated. The claimant filled this in and said there was no negative impact. The form did not include a box to give the date of any previous requests and the claimant did not say anywhere on the form whether she had made a previous request.[36]The respondent treated the claimant’s request as a formal flexible working request. Its policy on flexible working recognised the significant business benefits to be gained from retaining a diverse and motivated workforce through the implementation of flexible working, and included job-sharing as an example of flexible working (page 206).[37]On 2 November 2021, the claimant was invited to attend a meeting with Mr Potter on 9 November 2021 to discuss her flexible working request (pages 178, 180-189). She said she believed her August flexible working request was still being considered. Mr Potter said that the August flexible working was not a formal request. They discussed the proposed fixed days arrangement.[38]After the meeting, on 16 November 2021, Mr Potter wrote to the claimant to inform her that her flexible working request was refused (page 195). He gave three reasons:38.1 the business was planning changes to the workforce;38.2 there was a lack of work to do during the proposed working times; and38.3 the work could not be reorganised amongst other staff.[39]He said that the times of the fixed day proposal were more suitable operationally but that a fixed day roster would create the issue of covering remaining days in its rotation and that could not be reorganised amongst 6 of 37 other staff without making the claimant surplus to operational requirements. Mr Potter gave the claimant details of the right of appeal.[40]The claimant replied to say that she was still confused (page 201). She said that her contract had already been changed following her August flexible working request, which she understood to be a permanent change, and she was chasing up her amended contract. She did not understand why she had been asked to put in another flexible working request, when employees were only allowed to apply once a year. She said, ‘Can you please let me know what is going on?’[41]The claimant appealed against Mr Potter’s decision. Before the appeal was heard, another issue arose; we explain this next. Absence on 16 November 2021 and disciplinary investigation[42]On 16 November 2021, the claimant was absent from work to care for her daughter who was sick. The claimant’s daughter had been unwell from 13 November but had been improving. The claimant thought that her daughter would be well enough to go to school on 16 November but on that morning she was unexpectedly not well enough to return to school, resulting in the claimant having to take dependants’ leave. We find, based on the claimant’s account given at an investigation meeting on 23 November 2021, that the claimant had to take her daughter to the doctor on this day. The claimant’s mother could have looked after the claimant’s children, but she is unable to drive and was therefore not able to take the claimant’s daughter to the doctor.[43]The claimant telephoned the respondent at 7am, an hour before her shift started, to tell her manager that she would be off on that day. The absence was recorded as dependants’ leave.[44]On 17 November 2021, the claimant had a return to work interview with a duty manager, Elliot Bailey, about her absence the previous day (page 197). Mr Bailey noted that the claimant had taken dependants’ leave on five occasions in a rolling 12 month period, (in fact in the previous eight months) and he thought this was excessive. He told her that she would be invited to attend an investigation interview in respect of the dependants’ leave taken. He wrote to the claimant to say that she would be required to attend an investigation meeting (page 199).[45]The respondent’s disciplinary procedure said that an investigation is carried out when a breach of discipline may have occurred (page 110). It said the investigation did not form part of the disciplinary process but was a prerequisite to it.[46]The investigation meeting with Mr Bailey took place on 23 November 2021 (pages 212-214). During the meeting Mr Bailey identified the dates on which the claimant had taken dependants’ leave that year: 2 April, 13 April, 6 August, 16 September and 16 November. 7 of 37[47]Mr Bailey noted that 2 April 2021 was a day for which the claimant had previously asked to book annual leave but her request had been refused. The respondent’s procedure requires annual leave to be booked one year in advance. We accept that the claimant was not seeking to take dependant’s leave on 2 April 2021 to circumvent the refusal of annual leave. The claimant had not remembered that she had requested annual leave for that date a year before. It was a coincidence of dates.[48]After his investigation, Mr Bailey recommended that the case should be put forward for a disciplinary hearing (page 215-217).[49]On 25 November 2021, the claimant was invited to attend a disciplinary hearing. It was due to take place on 30 November 2021. The letter recorded that the allegation was taking an excessive amount of dependants’ leave. The respondent did not pursue any allegation that the leave taken on 2 April 2021 was not genuinely because of an emergency or ill-health (pages 221- 222). It was not suggested to the claimant in the hearing before us that the leave on 2 April 2021 was anything other than dependant’s leave.
Conclusions
[50]On 29 November 2021, the invitation to a disciplinary hearing letter was resent to the claimant: the date for the disciplinary hearing was rescheduled to 4 December 2021 because of sickness in the team dealing with the disciplinary process (page 227). Flexible working appeal[51]The claimant’s appeal against the refusal of her flexible working request which she had submitted on 23 November 2021 (pages 210-211) was progressing at the same time.[52]The flexible working appeal hearing took place on 30 November 2021. At this time, there was a shortage of staff because of reductions in numbers during the covid period and, as flights were increasing again, the respondent was actively recruiting.[53]The appeal was heard by Sarah Appleton, passenger services business manager (pages 233-240). As part of her consideration of the appeal Mrs Appleton considered about 30 rosters to see if the claimant’s requested working patterns could be accommodated. During these investigations, she became aware of a very recent proposal to change the times of an Iran Air flight which could make a fixed day roster workable.[54]Mrs Appleton wrote to the claimant with the outcome of the appeal, including the suggested roster which allowed fixed day working on Tuesday, Thursday and Sunday (pages 230-231). The letter was dated 30 November 2021 but emailed to the claimant on 1 December 2021 (page 232). Mrs Appleton said the claimant should take into account that the suggested fixed day roster may only be a temporary solution, and the respondent would need to review the request if the times of the Iran Air flight changed. She added: 8 of 37 ‘Unfortunately, at the moment, constant flexibility is needed and we are unable to commit to a permanent flexible working arrangement at this time’. Claimant’s resignation[55]On 3 December 2021 the claimant asked the respondent’s HR business partner whether she could be considered for a role working on the JetBlue contract. The claimant said that a discussion which had taken place at the appeal meeting about the possibility of working on a roster for this airline was missing from the minutes (page 242). The HR business partner replied to say that the minutes were not verbatim, and she would ask Mr Potter about the possibility of working on the JetBlue contract (page 241).[56]On 4 December 2021, the claimant resigned with immediate effect. In her resignation letter (pages 247-250) she said her reasons for resigning were:56.1 the way in which the respondent dealt with her request for flexible working including failing to put an approved agreement in writing and asking her to fill in an additional flexible working form;56.2 disciplining her for taking time off for a dependant;56.3 treating her flexible working application in an extremely unreasonable manner, which the claimant said amounted to indirect sex discrimination.[57]The claimant said that the second of these (the steps taken by the respondent in relation to the dependants’ leave) amounted to detriment for asserting her right to take dependants’ leave under section 57A of the Employment Rights Act, and she wanted to make a formal complaint about that aspect.[58]The main reason for the claimant’s decision to resign was the respondent’s inability to commit to a permanent flexible working arrangement. The claimant felt that she was continuously fighting for her flexible working rights in a detrimental and unsupportive environment. The claimant was unable to provide the constant flexibility which the respondent said it needed. For her to work fixed days, her husband would have to make a flexible working request to work from home on the days the claimant would be working, and he would only be able to make one statutory request in a year. The claimant would not be able to accommodate a change of fixed days once agreed.[59]On 8 December 2021, the claimant was invited to attend a grievance hearing.[60]The grievance hearing took place on 14 December 2021. The claimant confirmed that her grievance was about the dependants’ leave issue and not the flexible working requests or her allegation of indirect sex discrimination (page 254). 9 of 37[61]The claimant was notified on 10 January 2022 that her grievance had not been upheld (page 266-267).
The law
[62]This section explains the legal principles which apply to the complaints the claimant is bringing. Protection against detriment[63]Section 47C of the Employment Rights Act 1996 says: (1) “An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done for a prescribed reason.”[64]The prescribed reasons relate to leave for family and domestic reasons and include (at paragraph 47C(2)(d)) reasons which relate to time off under section 57A, that is time off for dependants.[65]Regulation 19 of the Maternity and Parental Leave etc Regulations 1999 says that taking or seeking to take time off under section 57A is a prescribed reason. 66. ‘Detriment’ is given a wide interpretation. It means putting a worker under a disadvantage, or doing something that a reasonable worker would consider to be to their detriment (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11).[67]The relevant test for causation, as explained in the context of detriment complaints under section 47B (protected disclosure detriment), is whether the act or omission was materially influenced by the prescribed reason, in the sense that it had more than a trivial influence (Fecitt v NHS Manchester [2011] IRLR 64).[68]Section 48 provides for enforcement of section 47C. Section 48(2) says that it is for the employer to show the ground on which any act, or deliberate failure to act, was done. This means that the burden shifts to the employer where the other elements of a complaint of detriment are shown by the claimant.[69]Section 47B (detriment for making a protected disclosure) provides a right not to be subjected to a detriment by the employer or (pursuant to s47B(1A)) by another worker. There is no such provision under section 47C. Section 48 provides that employer includes worker, but only in relation to proceedings under section 47B(1A). Time off for dependants[70]Section 57A of the Employment Rights Act 1996 provides for time off for dependants. It says: 10 of 37(1) “An employee is entitled to be permitted by his employer to take a reasonable amount of time off during the employee’s working hours in order to take action which is necessary— (a) to provide assistance on an occasion when a dependant falls ill, gives birth or is injured or assaulted, (b) to make arrangements for the provision of care for a dependant who is ill or injured, (c) in consequence of the death of a dependant, (d) because of the unexpected disruption or termination of arrangements for the care of a dependant, or (e) to deal with an incident which involves a child of the employee and which occurs unexpectedly in a period during which an educational establishment which the child attends is responsible for him.(2) Subsection (1) does not apply unless the employee— (a) tells his employer the reason for his absence as soon as reasonably practicable, and (b) except where paragraph (a) cannot be complied with until after the employee has returned to work, tells his employer for how long he expects to be absent.(3) Subject to subsections (4) and (5), for the purposes of this section “dependant” means, in relation to an employee— (a) a spouse or civil partner, (b) a child, (c) a parent, (d) a person who lives in the same household as the employee, otherwise than by reason of being his employee, tenant, lodger or boarder.”[71]In Qua v John Morrison Solicitors [2003] IRLR 185 the EAT explained the approach to be taken when determining what is a reasonable amount of time off work, saying: “Parliament chose not to limit the entitlement to a certain amount of time per year and/or per case, as they could have done pursuant to clause 3.2 of the Directive. It is not possible to specify maximum periods of time which are reasonable in any particular circumstances. This will depend on the individual circumstances in each case and it will always be a question of fact for a tribunal as to what was reasonable in every situation (paragraph 18)” and 11 of 37 “The disruption or inconvenience caused to an employer’s business by the employee’s absence are irrelevant factors, which should not be taken into account. The right is, essentially, a right to time off to deal with the unexpected. The operational needs of the employer cannot be relevant to a consideration of the amount of time an employee reasonably needs to deal with emergency circumstances of the kind specified. Taking into account the employer’s needs as relevant to the overall reasonableness of the amount of time taken off would frustrate the clear purpose of the legislation which is to ensure that employees are permitted time off to deal with such an event, whenever it occurs, without fear of reprisals, so long as they comply with the requirements of s.57A(2).” (paragraph 22).[72]The EAT went on at paragraph 25 to summarise the questions the tribunal should ask, in the context of a claim of automatic unfair dismissal for taking or seeking to take time off under section 57A:(1) “Did the applicant take time off or seek to take time off from work during her working hours? If so, on how many occasions and when?(2) If so, on each of those occasions did the applicant (a) as soon as reasonably practicable inform her employer of the reason for her absence; and (b) inform him how long she expected to be absent; (c) if not, were the circumstances such that she could not inform him of the reason until after she had returned to work? If the tribunal finds that the applicant had not complied with the requirements of s.57A(2), then the right to take time off work under subsection (1) does not apply. The absences would be unauthorised and the dismissal would not be automatically unfair.(3) If the applicant had complied with these requirements then the following questions arise: (a) Did she take or seek to take time off work in order to take action which was necessary to deal with one or more of the five situations listed at para- graphs (a) to (e) of subsection (1)? (b) If so, was the amount of time off taken or sought to be taken reasonable in the circumstances?(4) If the applicant satisfied questions (3)(a) and (b), was the reason or principal reason for her dismissal that she had taken/sought to take that time off work?”[73]In this case, question (4) will relate to detriment rather than dismissal.[74]Mr Wallace submitted that, in relation to the test for determining reasonableness, Qua is unsound when considering an earlier case, Ministry of Defence v Crook and Irvine [1982] IRLR 488. In that case, which was about the reasonableness of time taken off for union duties/training, the EAT 12 of 37 said at paragraph 16 that the approach should be the same as the approach in cases of unfair dismissal, and therefore the correct test was the range of reasonable responses, not the tribunal’s own standard of reasonableness. Mr Wallace submitted that there is no good reason to limit the assessment of reasonableness as Qua does. We return to this in our conclusions.[75]In Royal Bank of Scotland plc v Harrison [2009] IRLR 28, the EAT, explained that, when assessing whether a period of absence fell under section 57A(1)(d) (unexpected disruption of care arrangements) there was no need to import the words ‘sudden’ or ‘emergency’ into the straightforward statutory words. The words ‘unexpected’ and ‘necessary’ are ordinary words to be construed according to their natural meaning.[76]The EAT in Harrison also said that it is for the tribunal to determine, if there is an issue about it, on the facts of each case, whether the action the employee wishes to take or took fell within the terms of section 57A(1). Right to request flexible working[77]Amendments to the law on the right to request flexible working were made by the Employment Relations (Flexible Working) Act 2023 which was brought into force on 6 April 2024 by the Employment Relations (Flexible Working) Act 2023 (Commencement) Regulations 2024. The amendments were not in force at the material times in relation to the claimant’s case. The provisions which applied in the claimant’s case were those in force prior to 6 April 2024, they are set out below.[78]Section 80F of the Employment Rights Act 1996 (as in force at the material times in this claim) said:(1) A qualifying employee may apply to his employer for a change in his terms and conditions of employment if— (a) the change relates to— (i) the hours he is required to work, (ii) the times when he is required to work, (iii) where, as between his home and a place of business of his employer, he is required to work, or (iv) such other aspect of his terms and conditions of employment as the Secretary of State may specify by regulations,(2) An application under this section must— (a) state that it is such an application, (b) specify the change applied for and the date on which it is proposed the change should become effective, 13 of 37 (c) explain what effect, if any, the employee thinks making the change applied for would have on his employer and how, in his opinion, any such effect might be dealt with,(3) …(4) If an employee has made an application under this section, he may not make a further application under this section to the same employer before the end of the period of twelve months beginning with the date on which the previous application was made.(5) The Secretary of State may by regulations make provision about— (a) the form of applications under this section, and (b) when such an application is to be taken as made.”[79]Section 80G sets out the employer’s duties in relation to an application under section 80F. The provision which was in force at the time said: (1) “An employer to whom an application under section 80F is made— (a) shall deal with the application in a reasonable manner, (aa) shall notify the employee of the decision on the application within the decision period, and (b) shall only refuse the application because he considers that one or more of the following grounds applies— (i) the burden of additional costs, (ii) detrimental effect on ability to meet customer demand, (iii) inability to re-organise work among existing staff, (iv) inability to recruit additional staff, (v) detrimental impact on quality, (vi) detrimental impact on performance, (vii) insufficiency of work during the periods the employee proposes to work, (viii) planned structural changes, and (ix) such other grounds as the Secretary of State may specify by regulations.”[80]At the material time, the decision period was three months beginning with the date on which the application is made.[81]More information about the form of a statutory flexible working application is contained in regulation 4 of the Flexible Working Regulations 2014. That says: “A flexible working application must—(a) be in writing; 14 of 37(b) state whether the employee has previously made any such application to the employer and, if so, when; and(c) be dated.” Constructive dismissal[82]The definition of dismissal in complaints of automatic and ordinary unfair dismissal includes constructive dismissal. Section 95(1)(c) provides that an employee is dismissed where: “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”[83]Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 sets out the required elements for constructive dismissal:83.1 that there was a fundamental breach of contract on the part of the employer;83.2 that the employer’s breach caused the employee to resign; and83.3 that the employee did not affirm the contract, for example by delaying too long before resigning.[84]The claimant in this case relies on breaches of the implied term of trust and confidence. This term was explained by the House of Lords in Malik v Bank of Credit and Commerce International SA 1997 ICR 606, HL as a term to the effect that neither party will, without reasonable and proper cause, conduct itself in a manner which, looked at objectively, is calculated or likely to destroy or seriously damage the degree of trust and confidence the parties are reasonably entitled to have in each other. That requires one to look at all the circumstances.[85]In Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978 Underhill LJ set out guidance on the questions to be considered where an employee claims to have been constructively dismissed and where there are said to be a number of breaches of the implied term. Those questions are:85.1 What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, the resignation?85.2 Has the employee affirmed the contract since that act?85.3 If not, was that act (or omission) by itself a repudiatory breach of contract?85.4 If not, was it nevertheless a part of a course of conduct comprising several acts and/or omissions which, viewed cumulatively, amounted to a breach of the implied term of trust and confidence? 15 of 3785.5 If so, did the employee resign in response (or partly in response) to that breach?[86]If a constructive dismissal is established, the tribunal must also consider the reason for dismissal, including whether it is for one of the ‘automatically’ unfair reasons, and if not, whether the reason for the dismissal is a potentially fair reason, and whether the dismissal is fair in all the circumstances, pursuant to section 98(4) of the Employment Rights Act 1996. Automatic unfair dismissal[87]Section 104 of the Employment Rights Act says: “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee – a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right; or b) alleged that the employer had infringed a right of his which is a relevant statutory right.”[88]A dismissal which is contrary to section 104 is ‘automatically’ unfair. The tribunal does not need to consider whether the dismissal was reasonable in the circumstances.[89]In a complaint of constructive dismissal for assertion of a statutory right, the question is whether the assertion of the right was the sole or principal reason for the conduct which constituted the fundamental breach of contract by the employer which triggered the claimant’s resignation. ‘Ordinary’ unfair dismissal[90]An employee with two or more years’ service has the right not to be unfairly dismissed (section 94 of the Employment Rights Act). This is sometimes called ‘ordinary’ unfair dismissal, to distinguish it from automatic unfair dismissal, such as dismissal for assertion of a statutory right.[91]Section 98 of the Employment Rights Act sets out the tests for determining whether there has been an ‘ordinary’ unfair dismissal. Subsection 1 provides: “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—(a) the reason (or, if more than one, the principal reason) for the dismissal, and(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.” 16 of 37[92]Redundancy and reasons which relate to the conduct of the employee are reasons falling within subsection (2).[93]Where there is a potentially fair reason for dismissal, section 98(4) of the Employment Rights Act 1996 says that the question of whether the dismissal is fair or unfair: a) “depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a fair reason for dismissing the employee; and b) shall be determined in accordance with equity and the substantial merits of the case.”[94]This includes considering whether the respondent acted in a procedurally fair manner and whether dismissal was within the range of reasonable responses open to the employer. The test under section 98(4) recognises that there may be more than one reasonable approach for an employer to take in the circumstances of the case; the tribunal must assess whether the respondent’s was one such reasonable approach. The tribunal must not decide what it would have done in the circumstances, or substitute its own view for that of the employer. Indirect sex discrimination[95]Section 19 of the Equality Act 2010 deals with indirect discrimination. It says:(1) “A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.”[96]Sex is one of the relevant protected characteristics for the purpose of section 19. 17 of 37[97]In Dobson v North Cumbria Integrated Care NHS Foundation Trust UKEAT/0220/19/LA, the EAT reviewed the authorities on judicial notice and disadvantage arising from childcare responsibilities, concluding at paragraph 46 that two points emerge: “a. First, the fact that women bear the greater burden of childcare responsibilities than men and that this can limit their ability to work certain hours is a matter in respect of which judicial notice has been taken without further inquiry on several occasions. We refer to this fact as ‘the childcare disparity’; b. Whilst the childcare disparity is not a matter directed by statute to be taken into account, it is one that has been noticed by Courts at all levels for many years. As such it falls into the category of matters that, according to Phipson [on Evidence, 19th edition], a tribunal must take into account if relevant.”[98]Section 136 provides for a shifting burden of proof, saying at sub-section (2): “If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.”[99]This shifting burden is built in to the structure of a complaint of indirect discrimination. In a complaint of indirect sex discrimination by a female claimant, the claimant must first show that a provision, criterion or practice (a ‘PCP’) has been applied that puts (or would put) women, including her, at a particular disadvantage. If she is able to do so, the burden shifts to the employer to show that the PCP was imposed in pursuit of a legitimate aim and was a proportionate means of achieving that aim. This is sometimes called ‘justification’.[100]The legal principles of justification were summarised by the EAT in MacCulloch v ICI [2008] IRLR 846 at paragraph 10 (approved by the Court of Appeal in Lockwood v DWP [2013] EWCA Civ 1195 at paragraph 46):100.1 The burden is on the employer to establish justification;100.2 The legitimate aim pleaded must correspond to a real need and must be appropriate with a view to achieving the objectives pursued and reasonably necessary to that end;100.3 Proportionality requires an objective balance to be struck between the discriminatory effect and the needs of the undertaking; and100.4 There is no "range of reasonable responses test". The employment tribunal must weigh the reasonable needs of the undertaking against the discriminatory effect of the measure and make its own assessment. 18 of 37[101]In Akerman-Livingstone v Aster Communities Limited [2015] UKSC 15, [2015] AC 1399 at paragraph 28, the Supreme Court said that the justification test comprises four questions:101.1 Is the objective sufficiently important to justify limiting a fundamental right?101.2 Is the measure rationally connected to the objective?101.3 Are the means chosen no more than is necessary to accomplish the objective? and101.4 Is the impact of the rights infringement disproportionate to the likely benefit of the impugned measure? Liability of employers and employees under the Equality Act 2010[102]Section 39 prohibits discrimination by employers against employees and applicants for employment. In relation to employees, it says at subsection 2: “(2) An employer(a) (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment;(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;(c) by dismissing B;(d) by subjecting B to any other detriment”.[103]Under section 109 of the Equality Act an employer can also be liable for the acts of others, including its employees who are acting in the course of their employment. Section 109 says (as far as relevant here):(1) “Anything done by a person (A) in the course of A's employment must be treated as also done by the employer.(2) …(3) It does not matter whether that thing is done with the employer's or principal's knowledge or approval.(4) In proceedings against A's employer (B) in respect of anything alleged to have been done by A in the course of A's employment it is a defence for B to show that B took all reasonable steps to prevent A— (a) from doing that thing, or 19 of 37 (b) from doing anything of that description.”[104]Section 110 deals with the liability of employees (and agents). Again, as far as relevant, it says:(1) “A person (A) contravenes this section if— (a) A is an employee or agent, (b) A does something which, by virtue of section 109(1) or (2), is treated as having been done by A's employer or principal (as the case may be), and (c) the doing of that thing by A amounts to a contravention of this Act by the employer or principal (as the case may be).(2) It does not matter whether, in any proceedings, the employer is found not to have contravened this Act by virtue of section 109(4).(3) A does not contravene this section if— (a) A relies on a statement by the employer or principal that doing that thing is not a contravention of this Act, and (b) it is reasonable for A to do so”.
Conclusions
[105]This section explains how we have applied these legal principles to the facts in the claimant’s case, to reach our decisions on the issues we have to decide. We have considered the issues in a different order to the list of issues. We have started with the complaints about flexible working and indirect sex discrimination, then considered the complaint about detriment, then the complaints about dismissal and finally the question of time limits. Issue 5: Breach of the statutory right to request flexible working (sections 80F to 80H of the Employment Rights Act)[106]The claimant made flexible working requests on 13 August 2021 (page 158) and 1 November 2021 (page 190). We have considered whether either request met the statutory requirements so that it amounted to a statutory flexible working request.[107]The application on 13 August 2021 did not comply with all the statutory requirements which were in force at the time. This is because it did not explain what effect, if any, the claimant thought making the change applied for would have on her employer and how, in her opinion, any such effect might be dealt with. Even applying a generous interpretation, nothing in the claimant’s email of 13 August 2021 could be considered to meet that requirement. We considered whether the subsequent emails which the claimant exchanged with Mr Potter included that information, such that we could treat the series of communications as one request which met the 20 of 37 requirements when considered together. However, even if we were to accept that section 80F permits an amalgamated request of this nature, we have not found that any of the claimant’s communications with Mr Potter at this time included any information about the effect on the employer.[108]We also considered whether, if the claimant thought there was no effect on the employer, she was still required to explain that. Based on the wording of subsection 80F(2)(c) and in particular the placement of the words ‘if any’, we have concluded that, even if the employee thought there was no effect, there was still a mandatory requirement to say so. It was not a requirement to provide an explanation only if the employee thought there would be some effect. Therefore, in respect of her application on 13 August 2021, the claimant did not comply with a requirement under section 80F(2)(c) which was (at the material time) a mandatory requirement of the statutory regime. Without that information being included, the application on 13 August 2021 did not amount to a statutory application under section 80F.[109]We recognise that this conclusion appears to elevate form over substance. The claimant complied with the other requirements of the legislation, and her request expressly said it was a ‘statutory request’. She could have complied fully by providing the same request in substance, but simply adding, ‘There would be no effect on my employer’. This would not have given the employer any more information than they in fact had. The respondent did not tell the claimant that she had failed to comply with one of the requirements, and did not ask her to provide the missing information. We note that since 6 April 2024, it is no longer a requirement of a statutory request to explain the effect on the employer. However, the legislation gives us no discretion to ignore or waive a requirement which was mandatory at the time, and therefore, despite these factors, as the claimant’s request did not meet all the statutory requirements, it was not a statutory request.[110]As to the request on 1 November 2021, the claimant made this application at the respondent’s request and on the respondent’s form. She completed a box about the impact of the new working pattern. She did not refer to any positive effect on the employer but in relation to negative impacts, she said she did not believe there would be any. This request therefore complied with section 80F in this respect (without providing any more information than her August request).[111]However, another piece of information was missing. The form did not include a section for the employee to state whether they had previously made a statutory flexible working request, and if so, when. This is also mandatory information, required by regulation 4(b) of the Flexible Working Regulations 2014. The claimant did not provide this information. This second request cannot be amalgamated with the August request (which did include information about the claimant’s previous request) because the arrangement sought in this second request was different: it was for fixed days rather than later start times. It was clearly a new request.[112]For this reason, we have come to the conclusion that the claimant’s request of 1 November 2021 also did not meet the requirements to make it a 21 of 37 statutory request for flexible working. Again, this conclusion might seem unfair. The reason the information was missing from the claimant’s request was a deficiency in the respondent’s form, and the respondent now relies on that deficiency. However, as explained, the legislation does not allow us any discretion to ignore any of the statutory requirements which are necessary for a request to be a statutory request, whatever the reason for the failure to provide all the required information.[113]Therefore, the claimant did not make any statutory request for flexible working, either on 13 August 2021 or 1 November 2021.[114]This complaint, which was brought against the first respondent only, does not succeed. Issue 6: failure to provide a written statement of change (section 4 of the Employment Rights Act)[115]This issue relates to the shift pattern changes which were agreed after the claimant’s flexible working request in August 2021. The claimant said that the respondent failed to provide her with a written statement of change in employment particulars after the agreement to change her shift times in August 2021. She said this was a breach of section 4 of the Employment Rights Act.[116]There was no change in terms and conditions as a result of changes under section 80F, as we have found that the claimant’s request was not a statutory request.[117]As to whether there was more generally an agreed change in the claimant’s terms and conditions which required written notice of change, the claimant’s contract said she worked 20 hours per week over a rostered shift pattern, without specifying the pattern. The letter recording the variation in 2017 said that shift patterns were subject to change and that the respondent reserved the right to review the claimant’s roster.[118]We have concluded that the claimant’s change of shift pattern in August 2021 was done informally, within the terms of her existing contract. While it might have been good practice to inform the claimant in writing of the agreed shift pattern changes in August 2021, there was no requirement to notify the claimant of a change in her written particulars under section 4 of the Employment Rights Act.[119]This complaint, also brought against the first respondent only, does not succeed. Issue 4: Indirect sex discrimination (section 19 of the Equality Act 2010)[120]We first consider whether the claimant has shown that the respondent applied a PCP which put women, including the claimant herself, at a particular disadvantage compared to men. 22 of 37[121]The claimant relied on a PCP that the respondent required its workers to be available for work potentially every day of the week and at any time, rather than on specified days and times. We have concluded that the respondent did apply a PCP of this nature. We reach this conclusion based on the explanation provided by Mrs Appleton in the claimant’s flexible working appeal that ‘constant flexibility is needed and we are unable to commit to a permanent flexible working arrangement at this time’.[122]The claimant said that this requirement put female parents at a particular disadvantage compared with male parents as they are less likely to be able to find reliable childcare provision which is compatible with constantly shifting work days and times, such that they will be less likely than male parents to stay in employment.[123]We take judicial notice of the childcare disparity, as explained by the EAT in Dobson v North Cumbria. We accept that the respondent’s requirement for constant flexibility put or would put women at a particular disadvantage compared to men, because women bear the greater burden of childcare responsibilities. This can limit their ability to work certain hours and this makes it difficult for them to work a pattern which potentially includes all hours because it is not set. Having a set work pattern makes it easier to plan childcare; it is more difficult to balance work and childcare responsibilities when working a shift pattern where the days and times of work may change. Providing short notice of changes to shift patterns may ameliorate the disadvantage slightly but it remains a disadvantage because of the need to change childcare arrangements at short notice.[124]The claimant was put at that disadvantage by being unable to continue working for the respondent because the application of the PCP led to a refusal to agree a permanent flexible working arrangement. The claimant was unable to work early shifts, because she needed to drop her daughter at school. She was unable to accept a temporary fixed day working pattern which was offered to her because the family’s childcare arrangements for a fixed day pattern were dependent on the claimant’s husband working at home on the days she was working, and he would not be able to change his working pattern more than once a year.[125]Therefore, the claimant has shown that the respondent applied a PCP which put women, including her, at a particular disadvantage compared with men. The burden shifts to the respondent to satisfy us that the PCP was a proportionate means of achieving a legitimate aim.[126]The legitimate aim relied on by the respondent is the duty to meet the passenger demands of its customer airlines in order to meet its Service Level Agreements and avoid any potential loss of contracts, fines or penalties as a result of any breach. We accept that this is a legitimate aim. It is central to the respondent’s business. It is a sufficiently important objective to justify limiting a fundamental right.[127]The PCP of requiring constant flexibility is connected to this aim. Complete flexibility would, on the face of it, allow the respondent to deploy its 23 of 37 customer service agents as and when needed, and therefore to meet the demands of its customer airlines. However, the PCP would not meet this aim if the requirement for constant flexibility means customer services agents have to leave because they are unable to meet the requirement for constant flexibility. This would result in the respondent being more short staffed and less able to meet its customer demands. This is especially true at a time when, as here, the number of flights was increasing after covid and the respondent was already short staffed.[128]In any event, the PCP was not a proportionate means of achieving this aim because the PCP went further than necessary to do so:128.1 The tribunal appreciates the difficulties faced by the respondent during the covid pandemic arising from changing airline schedules and staffing issues. However, in relation to the claimant’s November 2021 request for flexible working, there was a less discriminatory way for the respondent to achieve its aim of meeting customer demands than by refusing to grant any permanent flexible working arrangement.128.2 The respondent could have allowed the claimant to work fixed days on a longer-term basis by permitting the claimant to work the four days she could offer while another employee worked the other days in that week, dividing up a full week’s rota between them, similar to a job share arrangement. Job-sharing was named in the respondent’s flexible working policy as an example of flexible working.128.3 The working days which could have been offered to another employee or applicant would have been Monday, Tuesday and Wednesday, that is a fixed day working pattern without weekend working. This could have been an attractive arrangement for some. A little over 50% of the respondent’s customer service agents worked part time. The respondent could have asked whether there were any volunteers to make up a full week with the claimant.128.4 In addition, the respondent was understaffed and actively recruiting at this time: a part week fixed days role could have been offered as part of that recruitment process.128.5 With the claimant and another employee working a full week between them, a full-time shift pattern could have been covered. That would have given more scope for the claimant to be accommodated than the part-time only shift patterns. Some airlines, Singapore Airlines for example, were covered by full time staff only. Mrs Appleton agreed that there was no particular reason why two employees covering a 40 hour rota between them would not work.128.6 Two staff sharing one full time rota would not give rise to any problem with back-to-back shifts, as the respondent suggested. If the rota did not include back-to-back shifts when completed by one person, dividing the same rota up for two people would also not include back-toback shifts. The job share partners would work the shifts that fell on ‘their’ 24 of 37 days, or take a rest day when it fell on their day. If there was any problem, Mr Potter prepared the rotas manually and could have made a ‘bespoke’ adjustment, and staff were permitted to swap shifts, so there was scope for some flexibility if needed. The rosters already included flexibility in other respects, for example with the extra 10% of staff who were rostered for cover purposes.128.7 There would have been some additional cost incurred by employing two people to cover one full-time rota, for example car parking costs, but these would not be disproportionate.128.8 A fixed day job share arrangement would have given the respondent wide flexibility in terms of shift times and would have enabled the respondent to retain an experienced customer services agent at a time when it was short staffed and actively recruiting. That would have assisted it to meet its legitimate aim.[129]The respondent took no steps to investigate this arrangement. This would have been a proportionate way of the respondent meeting its aim, and providing the claimant with the regular working pattern which she was seeking.[130]The Iran Airline option put forward to the claimant by Mrs Appleton (a fixed day rota with working days on Sunday, Tuesday and Thursday) was insufficient to meet the requirement for proportionality. It did not offer the claimant the days she had requested, and more fundamentally, the respondent made clear that the pattern could only be offered on a temporary basis as constant flexibility was required. The claimant was unable to accommodate a fixed day pattern which was very likely to change, for the reasons explained.[131]The respondent’s requirement for constant flexibility could be expected to have a significant discriminatory effect on female employees, taking the childcare disparity into account. In the claimant’s case, it meant that she had to leave her job. Meeting the passenger demands of the respondent’s customers is clearly an important business need for the respondent, but we have concluded that there was a less discriminatory way for the first respondent to meet that need and accommodate the claimant, an experienced employee. Weighing up the discriminatory effect of the PCP against the benefit of the PCP to the employer, we have decided that the application of the PCP in this case was not justified.[132]The complaint of indirect sex discrimination succeeds against the first respondent, the employer. It was the application of the employer’s PCP which was the act of unlawful discrimination against the claimant.[133]This complaint was also brought against the third and fourth respondents, Mr Potter and Mrs Appleton. They responded to the claimant’s request for flexible working at stage 1 and at appeal stage. The first respondent did not run any defence under section 109(4), that it took reasonable steps to prevent the individual respondents from acting as they did. That is 25 of 37 consistent with the fact that the complaint of indirect discrimination concerned the application of the first respondent’s policy requirement for constant flexibility, rather than an act by the third or fourth respondents personally.[134]We have concluded, given the nature of the complaint in this case, that liability attaches to the first respondent ‘directly’, under section 39(2)(d). The application of the unjustified PCP amounts to a detriment to the claimant to which she was subjected by her employer, the first respondent.[135]Liability does not arise under section 109, the provision which imposes liability on the employer for the unlawful acts of its employees done in the course of their employment. The act complained of in this complaint of indirect discrimination was not an act by the third and fourth respondents for which the employer was liable, but rather the application by the first respondent itself of a policy requirement. The employer is liable under section 39(2), not section 109. The third and fourth respondents put the employer’s policy into place, but were not personally responsible for the PCP or its discriminatory effect. No liability arises under section 110 in respect of the third and fourth respondents.[136]For this reason, the complaints against the third and fourth respondents fail and are dismissed. Issue 7: Detriment for family leave (s.47C of the Employment Rights Act)[137]This complaint is brought against the first respondent and the second respondent. We accept Mr Wallace’s submission that it can only be brought against the first respondent, the employer. Section 47C only gives the right not to be subjected to a detriment by an employer. There is no provision under section 47C equivalent to section 47B(1A), which extends the right in whistleblowing detriment complaints to prohibit detriments done by another worker, expressly providing for personal liability. No such express provision exists in relation to detriment for family leave.[138]The legislative framework is therefore that in relation to complaints of detriment for reasons related to family leave, the complaint can only be brought against the employer. This means that a complaint brought under sections 47C and 48 can only be brought against the employer, not against another worker or employee. The complaint against the second respondent is dismissed for this reason.[139]As to the complaint against the first respondent, the claimant says that she was subjected to a detriment for taking time off under section 57A. We have to decide whether the time off taken by the claimant qualifies as time off taken under that section. We do so following the approach in Qua.[140]The first questions are: did the applicant take time off or seek to take time off from work during her working hours? If so, on how many occasions and when? 26 of 37[141]The respondent said that the claimant took dependant’s leave on 5 occasions: 2 April, 13 April, 6 August, 16 September and 16 November 2021.[142]We have found that 13 April 2021 was a day on which the respondent recorded the claimant as having taken dependants’ leave, but this was because it had rostered her for a shift which started later than her agreed flexible working arrangement, and she was unable to work that shift. That was not a day’s leave taken under section 57A, it was time off taken at the employer’s request.[143]Therefore the claimant took time off from work on 4 occasions: 2 April, 6 August, 16 September and 16 November 2021.[144]The next question is whether, on each of those occasions the applicant(a) as soon as reasonably practicable informed her employer of the reason for her absence; and(b) informed her employer how long she expected to be absent;(c) if not, were the circumstances such that she could not inform her employer of the reason until after she had returned to work?[145]As to 2 April 2021, we have found that the claimant did not take leave on that date to circumvent a refusal of annual leave; that was a coincidence of dates. The respondent did not suggest that the claimant failed to provide reasonable and proper notice of her absence on 2 April.[146]The respondent did not suggest that the claimant failed to provide reasonable and proper notice on 6 August 2021 and 16 November 2021.[147]The respondent said that the claimant failed to provide reasonable notice of her absence on 16 November 2021. She called her manager an hour before her shift was due to start and said she would be absent that day. In the circumstances, when the claimant’s daughter had been improving but woke up on 16 November not well enough to go to school, we have concluded that the claimant informed her employer as soon as reasonably practicable of the reason for her absence, and that she would be absent on that day.[148]The claimant having complied with these requirements, the following questions arise:(a) Did she take or seek to take time off work in order to take action which was necessary to deal with one or more of the five situations listed at paragraphs (a) to (e) of subsection (1)?(b) If so, was the amount of time off taken or sought to be taken reasonable in the circumstances?[149]In relation to (a), the respondent did not suggest that the claimant’s absence on 2 April, 6 August or 16 September were not within section 57(1).[150]The respondent said that the claimant’s absence on 16 November 2021 did not meet the requirements of section 57A because the claimant was 27 of 37 seeking time off to care for her child in circumstances which did not amount to an emergency.[151]As the EAT explained in Harrison in the context of section 57A(1)(d), it is not helpful to import words like ‘emergency’ into the legislation. The claimant relies on section 57A(1)(a), which does not include the word ‘emergency’. The question for the tribunal is whether it was necessary for the claimant to be absent to provide assistance on an occasion when a dependant (her daughter) fell ill.[152]The claimant expected her daughter to be well enough to return to school on 16 November and only became aware on the morning of 16 November that she would not be. The only other option available to the claimant was to ask her mother to look after her daughter. However, the claimant’s mother is unable to drive and was therefore not able to take the claimant’s daughter to the doctor. We have concluded that it was necessary for the claimant to be absent and that her absence fell within section 57A(1)(a).[153]We next consider question 3(b) of the Qua questions, that is whether the amount of time off taken or sought to be taken was reasonable in the circumstances.[154]The absences were of one day on each occasion. The respondent did not suggest that the amount of time taken on any of 2 April, 6 August or 16 September was unreasonable. To the extent that the respondent suggested that one day’s absence on 16 November 2021 was unreasonable, we do not agree. We have concluded that it was necessary for the claimant to be absent from work to take her daughter to the doctor and one day’s absence was reasonable in those circumstances.[155]The respondent also said that the number of days taken in an eight month period was unreasonable. Again, we do not agree. The claimant had taken four days absence (not five) over eight months within a rolling 12 month period to provide assistance when her daughter fell ill. That was not an unreasonable number of absences.[156]We have reached these conclusions having assessed the questions of necessity and reasonableness on an objective basis in line with the decision in Qua. We do not accept Mr Wallace’s submission that we ought to apply a range of reasonable responses test here. We accept the approach explained in both Qua and Harrison, that these are questions for the tribunal. We do so because in both of these authorities the EAT was considering this issue in the context of section 57A. MOD v Crook, is a much earlier authority and was considering a different statutory provision.[157]Our conclusions so far mean that the claimant’s absences on 4 occasions were time off taken under section 57A: 2 April, 6 August, 16 September and 16 November 2021. 28 of 37[158]The last question for us on this complaint is whether the claimant was subjected to any detriment by her employer because of taking time off under section 57A, which is a prescribed reason under section 47C.[159]The detriments relied on by the claimant are:159.1 on 17 November 2021 inviting the claimant to attend an investigation meeting;159.2 on 23 November 2021 holding an investigation meeting with the claimant;159.3 on 25 November 2021 inviting the claimant to attend a disciplinary hearing.[160]The investigation meeting was not part of the disciplinary process, but was a pre-requisite to it, and was carried out when a breach of disciplinary may have occurred. It was a step required to move to the formal disciplinary process. The disciplinary hearing was a step at which the claimant could be issued with a sanction. For these reasons, we have concluded that a reasonable worker would have considered the investigatory and disciplinary steps taken by the respondent to be to their detriment.[161]At this stage the burden shifts to the respondent to show the ground on which any act was done. Mr Wallace said that the reason Mr Bailey took steps to investigate the claimant and recommended a disciplinary hearing was not because the claimant had availed herself of her statutory right to time off, but rather because he was concerned that she had taken excessive time off by exceeding the amount of time afforded by the right.[162]We have found that four of the days the claimant took off were time taken off under section 57A. That time off was the reason for Mr Bailey’s actions. The detriments were done because of or materially influenced by time taken off under section 57A. They were done because the claimant took time off to which she had a statutory right. The detriments were therefore done for a prescribed reason.[163]The complaints of detriment under sections 47C and 48 succeed against the first respondent. Issue 2: Constructive dismissal[164]The dismissal complaints are against the first respondent only.[165]We have to decide whether the claimant was dismissed. The respondent says she resigned. The claimant says she was constructively dismissed; she relies on breaches of the implied term of trust and confidence.[166]We have to ask whether the conduct relied on by the claimant, viewed objectively, was conduct which was likely to destroy or seriously damage the relationship of trust and confidence between the claimant and the respondent. The claimant relied on: 29 of 37166.1 the respondent's alleged breaches of flexible working regulations;166.2 the respondent's alleged failure to provide written particulars of employment;166.3 the alleged indirect sex discrimination;166.4 alleged unfair treatment for asserting a statutory right (the right was identified in the particulars of claim as unfair detrimental treatment for asserting the right to time off for dependants).[167]These were also the reasons given by the claimant in her resignation letter.[168]In our findings of fact, we have found in relation to each of these allegations, that the following treatment took place:168.1 the respondent treated the claimant’s first request for flexible working informally and required the claimant to make another flexible working request;168.2 the respondent failed to provide written confirmation of the arrangement agreed in response to the first request;168.3 the respondent refused the claimant’s request for a fixed day working pattern and told her that there was a requirement for constant flexibility and that the respondent could not provide any permanent flexible working arrangement;168.4 the respondent took steps to investigate and to consider disciplining the claimant for taking statutory time off to care for a dependant.[169]In line with the guidance in Kaur, we start by considering the most recent act which the employee says triggered the resignation. This was the response on appeal to the claimant’s request for flexible working (we have found that this was a non-statutory request). This act by the respondent happened on 1 December 2021.[170]The claimant resigned three days later, on 4 December 2021. She did not affirm the contract between the outcome of her flexible working appeal and her resignation. The claimant’s enquiry on 3 December 2021 about the appeal hearing minutes and the JetBlue contract indicated that she had not accepted and was still considering the respondent’s response to her flexible working request. She was still considering whether she would be able to continue working for the respondent. It did not amount to an affirmation of the contract.[171]We have decided that the first respondent’s appeal response to the claimant’s flexible working request in November 2021 was conduct which, viewed objectively, was likely to seriously damage the relationship of trust between the respondent and the claimant, because telling the claimant that constant flexibility was required, and that no permanent flexible working arrangement could be agreed meant that the claimant would be unable to 30 of 37 balance her home and work life. The claimant felt that she was continuously fighting for her flexible working rights in a detrimental and unsupportive environment. Viewed objectively, it was reasonable for her to have that impression. There was no reasonable and proper cause for the conduct. It was contrary to the respondent’s own flexible working policy.[172]Further, the appeal response to the claimant’s November 2021 flexible working request was part of a course of conduct which, viewed cumulatively, was likely to seriously damage the relationship of trust between the claimant and the respondent and for which there was no reasonable and proper cause. This course of conduct comprised the most recent act together with the following acts:172.1 The respondent’s failure to deal formally with the claimant’s request for flexible working in August 2021, despite the claimant making what was clearly intended to be a formal request. We have found that it was not a statutory request because it failed to say what the impact would be on the employer, but this was not the reason the respondent did not treat it formally. Mr Potter thought that as he was able to accommodate it, he did not have to go through a formal process. This was contrary to the respondent’s policy, and afforded the claimant less protection than if the request had been considered formally;172.2 The respondent’s failure to provide formal confirmation of the changes agreed in August 2021, despite the claimant asking for this. The claimant had prior experience of her previous flexible working arrangements being overlooked by managers and having to be confirmed by HR, so, viewed objectively, it was reasonable that she would ask to have formal confirmation of the agreement reached in August 2021. The respondent did not reply to her request about this;172.3 The respondent’s request that the claimant complete another flexible working request in November 2021. Because of the respondent’s failure to treat the claimant’s August 2021 request formally or to confirm the outcome clearly to the claimant, the claimant was confused by this second process and the respondent failed to clarify this to her. Viewed objectively, it appeared to the claimant that the respondent was not following its flexible working policy and was going back on something which had been agreed in August;172.4 At the same time that the claimant was going through the confusing November 2021 procedure, the respondent commenced an unjustified investigation of the claimant’s time off to care for a dependant, and recommended that the matter should progress to a disciplinary hearing.[173]We have decided that the respondent’s conduct, looked at objectively, was likely to destroy or damage the implied term of mutual trust and confidence 31 of 37 between the claimant and the respondent and that there was no reasonable and proper cause for it. This applies to the most recent act on the part of the employer in itself, but also to that act viewed cumulatively as part of a course of conduct.[174]All breaches of the implied term of mutual trust and confidence are fundamental breaches which go to the heart of the contract.[175]The claimant resigned in response to the breach. She made this clear in her resignation letter.[176]For these reasons, we have concluded that the claimant was constructively dismissed. We go on to consider whether the dismissal was unfair, starting with the complaint of automatic unfair dismissal. Issue 3: Automatic unfair dismissal for asserting a statutory right[177]We have found that the principal reason for the claimant’s dismissal was the respondent’s failure to agree her request for flexible working, other than to offer different fixed days on a temporary basis. The principal reason was not because the claimant had asserted a statutory right.[178]This complaint fails. Issue 2 (continued): ‘Ordinary’ unfair dismissal[179]This means we come back to issue 2, to consider whether the claimant’s dismissal was an ‘ordinary’ unfair dismissal. In this complaint, the first question is whether the reason for the dismissal is a potentially fair reason,[180]The respondent said the dismissal was for redundancy or, in the alternative, for a reason relating to the claimant’s conduct, namely she was not willing to work her contracted hours. We have found that the principal reason for the dismissal was the respondent’s response to the claimant’s flexible working request which required constant flexibility in circumstances where she could not comply with that and where there was another option available to the respondent. That was not a redundancy reason or a reason relating to the claimant’s conduct. It was not any other substantial reason justifying dismissal.[181]As there was no fair reason for dismissal, the complaint of ordinary unfair dismissal is well-founded and succeeds. Issue 1: Jurisdiction[182]Finally, we come back to the question of whether the complaints were brought within the time limit.[183]The claimant notified Acas for early conciliation on 18 December 2021 and the EC certificate was issued on 28 January 2022. The claimant brought her claim on 3 March 2022. 32 of 37[184]The complaints which have succeeded against the first respondent are the complaints of indirect discrimination, detriment for a family leave reason, and ordinary unfair dismissal. The dates on which the relevant acts took place are:184.1 The indirect discrimination which we have found relates to the application of a PCP which was a continuing state of affairs, and which was applied in the claimant’s case on 30 November 2021;184.2 The detriment for a family leave reason relates to a course of conduct between 17 November and 25 November 2021;184.3 The unfair dismissal relates to the termination of the claimant’s employment with immediate effect on 4 December 2021.[185]Taking the earliest of these dates, 17 November 2021, the ‘primary’ three month time limit expired on 16 February 2022. However, when calculating the expiry date, the period from 19 December 2021 to 28 January 2022 is not counted, because that was a period when the claimant was in the early conciliation process. That is a period of one month and 9 days. Therefore the primary time limit, adjusted to take account of the period of Acas early conciliation, expired on 25 March 2022.[186]The claimant presented her claim on 3 March 2022.[187]The three complaints which have succeeded were therefore brought in time.[188]A date has been set for a remedy hearing. Notice of the hearing and case management orders to prepare for the hearing have been sent separately.[1]The respondent must pay the claimant the sum of £23,082.93 comprising:a. Past financial losses of £8,463.35;b. Interest on past financial losses of £1,009.11;c. Loss of pension contributions of £369.77;d. Injury to feelings award of £9,000;e. Interest on the injury to feelings award of £2,181.70;f. A basic award of £1,559;g. Award for loss of statutory rights of £500.[2]The time for compliance with this judgment is 14 days from the date on which the judgment is sent to the parties. Page 1 of 17[1]The claimant was employed by the respondent as a customer services agent at Heathrow from 1 February 2016 until 4 December 2021. The respondent provides ground handling services for commercial airlines. The claim arises from the claimant’s requests for flexible working and taking time off for dependants.[2]The claim form was presented on 3 March 2022. The claimant complained of breach of the right to request flexible working, detriment for taking time off for dependants, indirect sex discrimination, constructive unfair dismissal and automatic unfair dismissal for assertion of a statutory right. The respondent defended the claim.[3]The liability hearing took place in person over four days on 20, 21, 22 and 23 May 2024. We reserved judgment on liability. After a deliberation day on 21 June 2024, our reserved judgment and reasons were sent to the parties on 6 August 2024.[4]The unanimous decision of the tribunal was that the complaints of indirect sex discrimination, detriment done for a prescribed family leave reason, and unfair dismissal succeeded against the employer, Dnata Ltd. The claimant’s other complaints of breach of the right to request flexible working and automatic unfair dismissal for assertion of a statutory right did not succeed and were dismissed. Claims against three individual respondents who were employees of Dnata Ltd at the material times did not succeed and were dismissed.[5]A date was arranged for the remedy hearing and we made case management orders for the remedy hearing.[6]At the remedy hearing, there was an agreed bundle of 383 pages which included the claimant’s original and updated schedules of loss and the respondent’s counter-schedule of loss. In these reasons we refer to pages in the remedy bundle by page number. We were also provided with a supplemental bundle which had 64 pages. We refer to pages in that bundle with the prefix S.[7]Prior to the remedy hearing the respondent made an application to stay the remedy hearing pending an appeal to the EAT. The tribunal was not made aware of the application until the remedy hearing itself. Taking a pragmatic approach in light of the fact that the parties were at the remedy hearing and ready to proceed, Mr Wallace said the respondent no longer pursued the application in full. However, he applied for an order staying the judgment (and the date for payment of the award) until after the decision of the EAT. Mr Zaidi on behalf of the claimant objected to this application, saying that at present it was not clear whether the respondent’s appeal had any prospect of success and that justice delayed would be justice denied. We reserved Page 2 of 17 our judgment on this application. We explain our reasons for refusing it at the end of our reasons.[8]After time for reading and for dealing with this preliminary matter, we heard evidence from the claimant and from Mrs Adel Johnson, the respondent’s UK HR Director. Both had prepared and served witness statements. We had helpful written and oral submissions from both parties.[9]After the evidence and submissions there was insufficient time for us to make our decision and explain it to the parties, so we reserved judgment. The Issues[10]The claimant did not seek reinstatement or reengagement. She did not ask the tribunal to make any recommendations. Therefore, the overarching issue for the tribunal to decide is what compensation the claimant should be awarded for indirect sex discrimination, detriment done for a prescribed family leave reason, and unfair dismissal.[11]The issues to be decided to determine remedy were set out in the case management orders for the remedy hearing which were sent to the parties on 6 August 2024.
Findings of fact
[12]We record here the relevant findings of fact from our liability decision, and additional findings of fact we have made based on the evidence we heard and read at the remedy hearing. Claimant’s pay and pension entitlements with the respondent[13]The claimant worked for the respondent as a customer services agent at Heathrow from 1 February 2016 until 4 December 2021.[14]The employer pension contribution to which the claimant was entitled was 4% of gross pay (page S11).[15]We accept the calculations of pay in Mr Wallace’s skeleton argument. These are based on the claimant’s payslips and contractual documents. The calculations factor in increases in the annual rates of pay rate (these increases were agreed between the parties). The claimant’s gross weekly pay at the time of her dismissal was £311.80 comprising basic pay, London weighting and shift payments (pages 370, S9 and S12). These figures reflect a 20 hour working week. The claimant had reduced her working hours from 24 hours a week to 20 hours a week on 25 August 2021 to accommodate a flexible working arrangement.[16]On 1 November 2021 the claimant requested a further reduction in her hours to 18 hours a week. That reduction would facilitate a fixed day working pattern to enable the claimant to accommodate childcare responsibilities. We found the refusal of that request amounted to unjustified indirect sex discrimination and (together with the circumstances surrounding Page 3 of 17 the refusal) a breach of the implied term of trust and confidence entitling the claimant to treat herself as constructively dismissed. The claimant was dismissed on 4 December 2021.[17]If the claimant’s flexible working request of 1 November 2021 had been accepted, she would have been working 18 hours a week. This could have been put in place by 5 December 2021 (a few days after the appeal hearing).[18]We accept the calculations in Mr Wallace’s skeleton argument that the pay to which the claimant would have been entitled in that scenario would have been:18.1 From December 2021 to 5 April 2022, net weekly pay of £277.37 per week, comprising basic pay, London weighting and shift payments;18.2 From 6 April 2022 to 5 April 2023, after the respondent increased all pay rates by 5.5%, net weekly pay of £295.70 per week, comprising basic pay, London weighting and shift payments.[19]The claimant’s payslips with the respondent showed that for October and November 2021 deductions were made from her salary to recover an overpayment of universal credit (pages 16 and 17). We accept the claimant’s evidence that she has fully repaid the overpayment because it is consistent with her payslip of December 2021 which had no such deduction (page 18). The impact of the discrimination/detriment on the claimant[20]The respondent had informally agreed the request for flexible working in August 2021 and the claimant had started working the new pattern. The respondent did not reply to the claimant’s email of 26 August 2021 asking whether she needed to sign a new contract to reflect this change. The claimant was told on 27 September 2021 that her new flexible working arrangement could no longer be accommodated. She was asked to complete another flexible working request; we found in our liability judgment that she found the process confusing. She had a meeting with a manager on 2 November 2021 and an appeal meeting on 30 November 2021, the outcome of which was sent to her on 1 December 2021.[21]There was therefore a period of over 3 months when the claimant was trying to confirm and agree her flexible working request, with the most impactful period being the two month period from 27 September to 1 December. It ended with the claimant’s decision to resign, principally because of the way in which the respondent dealt with her flexible working request. We found that during this time the claimant felt that she was continuously fighting for her flexible working rights in a detrimental and unsupportive environment. We accept the evidence in her remedy witness statement that the lack of engagement with her flexible working requests caused her significant emotional distress and took an emotional toll. Page 4 of 17[22]The flexible working situation overlapped with an investigation and a proposed disciplinary hearing into allegations about dependants’ leave taken by the claimant. We found, on the basis of the claimant’s resignation letter, that this issue was also one of the claimant’s reasons for resigning; we can infer from this that the claimant experienced some upset from the treatment regarding her dependants’ leave. The claimant’s job search[23]After her dismissal the claimant applied for two job in December 2021 (pages 23 and 24) and one in March 2022 (page 20). These were customer service roles for which the claimant’s previous experience would have been highly relevant.[24]The claimant did not have any documentary evidence of any other job applications in 2022. In her evidence to us, she said that she went into hundreds of shops in Uxbridge, Slough and Hayes to ask about possible vacancies. She did not have any documentary record of these enquiries. She said that all the shops she enquired with told her that she could apply online, but that she would not be able to apply for flexible working arrangements to accommodate her childcare responsibilities until she had worked for them for 6 months.[25]Although she was told she could apply online, the claimant did not make any applications arising out of any of these enquiries. She said she did not think they would be successful because of the limitations on her hours of working, and so she did not apply. We find that it is likely that the claimant was mis-remembering the extent of these enquiries. We find that it is more likely that she enquired with a few shops, rather than hundreds. We do not think it is plausible that hundreds of shops would have said the same thing about the possibility of flexible working and that none of them would have even considered the scope for the claimant to have a working pattern which could accommodate her availability.[26]The claimant also said she made enquiries via recruitment agencies at this time, but again there was no record of this. She said this was because she went to the agencies in person and handed over paper copies of her CV, and that all communications with them were by phone. She could not remember when she had approached one of the agencies. We think it is more likely that she did not make these enquiries in 2022. We do not find it plausible, given current ways of working, that interactions of this type could take place without there being any documentary record at all.[27]The claimant became pregnant in the spring of 2022. She said that by December 2022, when she was almost 9 months pregnant, she stopped looking for work. Based on the lack of any documents showing any jobsearching after March 2022, we find that it is more likely that she was not conducting any active job-search after March 2022. We accept that the claimant might not have kept records of all her attempts to get a job, but if she had been actively looking for jobs after March 2022, we would have expected there to have been some documents to show this. Page 5 of 17[28]The claimant’s baby was born on 23 January 2023 and for about a year after that she was unable to look for jobs because she was looking after her new baby.[29]The claimant started her job search again in early 2024. In July 2024 she was successful in getting a job at the same salary as that with the respondent. The claimant’s new role started on 14 October 2024.[30]The claimant did not apply for any state benefits during the period between her dismissal and starting her new job. She did not apply for maternity allowance after the birth of her baby because she was not aware that she might be entitled to it. The roles suggested by the respondent[31]We accept the evidence of Mrs Johnson that in 2022 the recruitment market was buoyant. Her evidence was based on her own experience and on online reports which had been provided by the claimant. An article from ‘HR Director’ published in January 2022 said that there had been ‘months of hiring spikes’ and ‘months of record recruitment activity’ and that 2022 was expected to continue in a similar way (page 351-353). In May 2022 the Office for National Statistics reported that there were ‘more job vacancies than unemployed people for the first time’ (page 375).[32]The respondent produced over 280 pages of job adverts from the period 2022 to 2024 which it said the claimant could have applied for. Most were customer service roles. There were 64 part time roles. Some offered varied work schedules (for example page 82: the claimant agreed this was an ideal role for her). Some offered flexible hours to fit around personal circumstances (for example page 162: the claimant agreed that if she had seen this job she would definitely have applied for it). The law Compensation for discrimination[33]The remedy for complaints of discrimination at work is set out in section 124 of the Equality Act 2010: “124 Remedies: general(1) This section applies if an employment tribunal finds that there has been a contravention of a provision referred to in section 120(1).(2) The tribunal may— (a) make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate; Page 6 of 17 (b) order the respondent to pay compensation to the complainant; (c) make an appropriate recommendation.(3) An appropriate recommendation is a recommendation that within a specified period the respondent takes specified steps for the purpose of obviating or reducing the adverse effect on the complainant of any matter to which the proceedings relate.(4) Subsection (5) applies if the tribunal— (a) finds that a contravention is established by virtue of section 19, but (b) is satisfied that the provision, criterion or practice was not applied with the intention of discriminating against the complainant.(5) It must not make an order under subsection (2)(b) unless it first considers whether to act under subsection (2)(a) or (c).(6) The amount of compensation which may be awarded under subsection (2)(b) corresponds to the amount which could be awarded by the county court or the sheriff under section 119.(7) If a respondent fails, without reasonable excuse, to comply with an appropriate recommendation, the tribunal may— (a) if an order was made under subsection (2)(b), increase the amount of compensation to be paid; (b) if no such order was made, make one.”[34]The compensation which may be ordered corresponds to the damages that could be ordered by a county court in England and Wales for a claim in tort (section 124(6) and section 119(2)). There is no upper limit on the amount of compensation that can be awarded.[35]The aim of compensation is that ‘as best as money can do it, the [claimant] must be put into the position she would have been in but for the unlawful conduct’ (Ministry of Defence v Cannock and ors 1994 ICR 918, EAT). In other words, the aim is that the claimant should be put in the position she would have been in if the discrimination had not occurred. This requires the tribunal to look at what loss has been caused by the discrimination.[36]Loss includes financial losses and injury to feelings.[37]In Prison Service and others v Johnson [1997] ICR 275 EAT, the EAT set out the following principles that the ET should consider in making an award for injury to feelings: Page 7 of 17 “(i) Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor's conduct should not be allowed to inflate the award. (ii) Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could, to use the phrase of Sir Thomas Bingham M.R., be seen as the way to “untaxed riches.” (iii) Awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think this should be done by reference to any particular type of personal injury award, rather to the whole range of such awards. (iv) In exercising their discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind. This may be done by reference to purchasing power or by reference to earnings. (v) Finally, tribunals should bear in mind Sir Thomas Bingham's reference to the need for public respect for the level of awards made.”[38]In Vento v Chief Constable of West Yorkshire Police (No. 2) [2002] EWCA Civ 1871 the Court of Appeal identified three broad bands of compensation for injury to feelings awards. The Presidential Guidance on injury to feelings set out updated Vento bands: for claims presented on or after 6 April 2021, as the claimant’s was, the lower band is £900 to £9,100 (less serious cases); the middle band £9,100 to £27,400 (cases that do not merit an award in the upper band); and the upper band £27,400 to £45,600 (the most serious cases), with the most exceptional cases capable of exceeding £45,600.[39]The injury to feelings award is assessed by reference to the injury to the claimant’s feelings, not to the nature or seriousness of the respondent’s conduct. Aggravated damages[40]Compensation may also include an award in respect of aggravated damages. Aggravated damages are also compensatory not punitive.[41]In Commissioner of Police of the Metropolis v Shaw EAT 0125/11, Mr Justice Underhill (then President of the EAT) set out broad categories of case in which aggravated damages might be awarded. These include:41.1 Where the discriminatory act is done in an exceptionally upsetting way, that is where the respondent has behaved in a ‘high-handed, malicious, insulting or oppressive manner’;41.2 Where subsequent conduct adds to the claimant’s injury, for example where the respondent conducts tribunal proceedings in an Page 8 of 17 unnecessarily offensive manner or ‘rubs salt in the wound’ by plainly showing that it does not take the claimant’s complaint of discrimination seriously.[42]When making awards for non-pecuniary losses, the tribunal must take care not to conflate the different types of award nor to allow double recovery. Interest[43]Interest on discrimination awards is provided for in the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. The regulations give the power to award interest on the claimant's losses as part of the compensation for discrimination. For past financial losses, interest normally runs from the "mid-point" between the date of the discrimination and the date of calculation (regulation 6(1)(b)). For injury to feelings, interest normally runs from the date of the discrimination to the date of calculation (regulation 6(1)(a)). Compensation for detriment[44]For complaints of detriment, including detriment for reasons related to family leave, the provision as to remedy is section 49 of the Employment Rights Act 1996: “49 Remedies (1) Where an employment tribunal finds a complaint under section 48(1) … well-founded, the tribunal— (a) shall make a declaration to that effect, and (b) may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure to act to which the complaint relates.”[45]Compensation in detriment claims may include compensation for injury to feelings; the same guidelines as in discrimination complaints should be adopted (Virgo Fidelis Senior School v Boyle 2004 ICR 1210, EAT). Unfair dismissal compensation[46]Section 118 of the Employment Rights Act provides that compensation for unfair dismissal consists of:46.1 A basic award; and46.2 A compensatory award.[47]Section 123 of Employment Rights Act says that the compensatory award shall be: Page 9 of 17 “Such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer”. Mitigation of loss[48]In Gardiner-Hill v Roland Berger Technics Ltd 1982 IRLR 498, EAT, the EAT said that when considering whether there has been a failure to mitigate, the employment tribunal should:48.1 identify what steps were reasonable for the claimant to have to take in order to mitigate her loss;48.2 consider whether the claimant did take reasonable steps to mitigate loss; and48.3 assess to what extent, if any, the claimant would have actually mitigated her loss if she had taken those steps. That requires the tribunal to determine the date on which those steps would have produced an alternative income, and to reduce the compensation by the amount of income that would have been earned.[49]In Singh v Glass Express Midlands Limited (EAT, 15 June 2018) HHJ Eady summarised guidance on mitigation of loss as set out by the EAT in Cooper Contracting Ltd v Lindsey: “(1) The burden of proof is on the wrongdoer; a Claimant does not have to prove they have mitigated their loss. (2) It is not some broad assessment on which the burden of proof is neutral; if evidence as to mitigation is not put before the ET by the wrongdoer, it has no obligation to find it. That is the way in which the burden of proof generally works; providing information is the task of the employer. (3) What has to be proved is that the Claimant acted unreasonably; the Claimant does not have to show that what they did was reasonable. (4) There is a difference between acting reasonably and not acting unreasonably. (5) What is reasonable or unreasonable is a matter of fact. (6) That question is to be determined taking into account the views and wishes of the Claimant as one of the circumstances but it is the ET's assessment of reasonableness - and not the Claimant's - that counts. (7) The ET is not to apply too demanding a standard to the victim; after all, they are the victim of a wrong and are not to be put on trial as if the losses were their fault; the central cause is the act of the wrongdoer. (8) The test may be summarised by saying that it is for the wrongdoer to show that the Claimant acted unreasonably in failing to mitigate. (9) In cases in which it might be perfectly reasonable for a Claimant to have taken on a better paid job, that fact does not necessarily satisfy the test; it would be important evidence that may assist the ET to conclude that the employee has acted unreasonably, but is not, in itself, sufficient.” Page 10 of 17
Conclusions
[50]We applied the legal principles to the facts as we found them, to decide the claimant’s award. We started by assessing financial losses and nonpecuniary losses to be awarded as part of the uncapped discrimination complaint, then considered whether any additional award should be made in respect of the detriment and unfair dismissal complaints.[51]As the successful complaint of discrimination was a complaint under section 19 (indirect discrimination), we first consider section 124(4) and 124(5).[52]In our judgment on liability, we concluded that the act of discrimination was the application of a policy requirement by the employer. That policy was not applied with the intention of discriminating against the claimant herself. This means that subsection 124(4) is satisfied, and subsection 124(5) applies. We cannot make an order for compensation unless we first consider whether to act under subsections (2)(a) or 2(c), that is whether to make a declaration or an appropriate recommendation.[53]We have already made a declaration in our liability judgment. Neither party suggested that any recommendation would be appropriate. In the circumstances of this case, as the claimant lost her employment as a result of the application of the policy, and is no longer employed by the respondent, a declaration alone would be insufficient and there is no recommendation which will properly address the impact of the discrimination. Therefore an award of compensation should be made. Loss of earnings[54]At the time the claimant was dismissed, she was working 20 hours a week. Mr Zaidi said that as the reduction in hours in August 2021 from 24 to 20 hours a week had not been formalised by way of a variation of contract, we should treat the pre-August arrangements as remaining in force and calculate losses by reference to a 24 hour week.[55]That would not be the right approach. We have to put the claimant in the position she would have been in if the discrimination had not happened. We do not assess losses by reference to a formal contractual position, but rather by reference to what the position would have been if the respondent had not discriminated against the claimant. We found that the indirect discrimination was not objectively justified because the respondent had failed to consider a job share arrangement which would have been a less discriminatory way of achieving its legitimate aims. Therefore, if the respondent had not indirectly discriminated against the claimant it would have agreed her flexible working request and she would have remained employed on the 18 hours/week working arrangement she was requesting.[56]We therefore have to assess losses by reference to an 18 hour working week. We have found that this would have been in place from 5 December 2021. Page 11 of 17[57]The claimant did not secure alternative employment until July 2024. We have to consider whether the claimant failed to mitigate her losses during the period between her dismissal in December 2021 and the start of her alternative role in October 2024.[58]We have concluded that it was reasonable for the claimant to take steps from December 2021 to December 2022 to find alternative employment by engaging in an active job-search and applying for any roles that could have been suitable for her. The job search could have included customer service roles in aviation or in retail or in other sectors. It would be reasonable for the claimant to apply for as many suitable vacancies as she could find, to maximise her chances of obtaining suitable employment. If the claimant could not find suitable permanent employment, it would have been reasonable to try to obtain a temporary role for anything up to the 20-24 hours a week which she was able to do.[59]Having identified what steps were reasonable for the claimant to have taken, we have considered whether the claimant has acted unreasonably in failing to take those steps.[60]We have found that the claimant only carried out an active job-search during the period from December 2021 to March 2022 and that during that period she only applied for 3 jobs. After March 2022 she stopped actively looking for work. She made some enquiries, but even when they invited her to apply online, she did not do so.[61]We have in mind that there is more than one reasonable way to mitigate losses and that we should not apply too demanding a standard to the claimant who is not the wrongdoer. We have however concluded that the claimant did act unreasonably in applying for only three jobs during the period December 2021 to March 2022 and in not actively looking for any work after that. It was unreasonable, as the claimant did, to rule out jobs without applying or making further enquiry, on the assumption that the hours would not be workable for her.[62]We next assess whether and to what extent the claimant would have actually mitigated her losses if, during the period from December 2021 to December 2022 she had applied for more jobs.[63]We accept that after the end of June 2022, when the claimant would have been about three months pregnant, it would have started to become more difficult for the claimant to have found a suitable role. We accept that it would not have been reasonable to expect her to look for work in the weeks leading up to the birth of her baby and the months after the birth.[64]However, we have concluded that if the claimant had been conducting an active job search during the period from December 2021, she would have been successful in obtaining alternative employment on an equivalent salary to her salary with the respondent and with the same pension by the start of July 2022. We reach this conclusion because: Page 12 of 1764.1 The claimant’s skills gained in her previous roles as a customer services agent would have been very transferable, for example to customer services roles in retail;64.2 We have found that the recruitment market was buoyant at the time;64.3 There were examples of roles which the claimant accepted were ideal for her and she would definitely applied for. The claimant could have found roles like these if she had been actively looking.[65]We have concluded that if the claimant had not acted unreasonably in failing to mitigate her losses, she would have fully mitigated her losses within six months of starting a full job search, that is by the beginning of July 2022. She would have replaced her losses arising from the dismissal from that date and would have been in a new role well in advance of the relevant date for qualification for statutory maternity pay with her new employer.[66]For these reasons, we have awarded loss of earnings for the period from 5 December 2021 (the day after dismissal) until 30 June 2022 as follows:66.1 from 5 December 2021 to 5 April 2022 (17.4 weeks) the claimant’s loss of earnings was £277.37 per week, that is £4,826.24; and66.2 from 6 April 2022 to 30 June 2022 (12.3 weeks) the claimant’s loss of earnings was £295.70 per week, that is £3,637.11.[67]The award for past loss of earnings is £8,463.35. Interest on past loss of earnings[68]We award interest on these past losses. Interest is payable at 8% from the midpoint of the period which starts from the discrimination, and ends with the calculation date. In this case the financial losses arising from the discrimination started on the day after the dismissal, 5 December 2021. The date of calculation is 26 November 2024. That is a period of 1088 days in all, so 544 days to the midpoint.[69]The interest calculation is 8% of £8,463.35 divided by 365 (to produce a daily rate) multiplied by 544 days.[70]The award for interest on past financial loss is £1,009.11. Pension loss[71]The claimant was entitled to employer pension contributions at a rate of 4% of gross pay. We use the contributions method to calculate pension loss:71.1 from 5 December 2021 to 5 April 2022 (17.4 weeks) the claimant’s loss of pension contributions was 4% of £304.33 per week, that is £211.81; and Page 13 of 1771.2 from 6 April 2022 to 30 June 2022 (12.3 weeks) the claimant’s loss of pension contributions was 4% of £321.06 per week, that is £157.96. The award for pension loss is £369.77.[73]No interest is payable on pension loss (it is a form of future loss). Aggravated damages[74]We do not consider this to be a case in which a separate award of aggravated damages should be made. The claimant relied on the respondent’s conduct throughout her employment as the basis for this claim, in particular the refusal to engage with her about her flexible working applications and the punitive actions taken against her in relation to dependants’ leave. We did not find that to be high-handed, malicious, insulting or oppressive treatment. Injury to feelings[75]To avoid double recovery (compensating twice in respect of the same injury), we have decided to make a holistic award of injury to feelings, incorporating the injury caused by the unlawful detriment as well as the discrimination in one award, rather than making two separate awards. This is because the treatment overlapped, and both elements played a part in the claimant’s constructive dismissal. We therefore took the injury to the claimant’s feeling from both aspects of the treatment into account in making one award.[76]We have considered the Vento bands for awards of injury to feelings. In her updated schedule, the claimant said that an award in the middle band was appropriate and proposed an award of £21,000 to £24,000. The respondent invited us to make an award at the bottom of the lower band, suggesting £4,500.[77]We have in mind that the discrimination in this case was indirect discrimination, and was not an intentional act directed against the claimant. However, our assessment focuses primarily on the injury to the claimant’s feelings, rather than the nature of the employer’s act.[78]We found that the discriminatory treatment had a significant emotional impact on the claimant. She felt she was having to fight for her rights and that she was in a detrimental and unsupportive environment. Overall, this period lasted over three months, and with particular impact during the latter two months. The respondent’s decision to investigate and discipline the claimant in respect of dependant’s leave overlapped with that treatment and also caused upset to her. Both aspects of the treatment resulted in her having to leave her job.[79]Having considered those factors, we have decided that the appropriate award for injury to feelings in the claimant’s case is an award towards the Page 14 of 17 top of the lower Vento band. The lower band is £900 to £9,100. The claimant is awarded £9,000 in respect of injury to feelings.[80]Stepping back and considering the level of this award, we are satisfied that it properly reflects the injury to the claimant’s feelings which was caused by the respondent’s discriminatory and detrimental treatment. It is appropriate without being excessive, and is compensatory not punitive.[81]There was no evidence before us that the discriminatory and detrimental treatment caused or contributed to any ill health such that we could make an additional award for personal injury. Interest on injury to feelings award[82]We award interest on the injury to feelings award. For this element of the compensation, interest is payable at 8% for the whole of the period from the first act of discrimination to the calculation date. In this case the first act of unlawful treatment which caused non-pecuniary loss was the first act of detriment on 17 November 2021. The date of calculation is 26 November 2024. That is a period of 1106 days.[83]The interest calculation is 8% of £9,000 divided by 365 (to produce a daily rate) multiplied by 1106 days.[84]The award for interest on the injury to feelings award is £2,181.70. Detriment for family leave[85]As explained above, we have made a holistic award for injury to feelings which includes this complaint. To avoid double recovery, no further award is required in respect of this complaint. Unfair dismissal compensation[86]The claimant is entitled to a basic award of 5 weeks’ pay. The claimant’s gross weekly pay was £311.80. This is below the statutory cap. The claimant is entitled to a basic award of £1,559.[87]The claimant has lost her statutory rights as a result of the dismissal. We accept that an appropriate award for compensation for loss of statutory rights is that suggested by both parties in their schedules of loss: £500.[88]The claimant’s award for her discrimination/detriment complaints includes compensation for other elements of financial loss which she would have received in the compensatory award, such as pension loss. To avoid double recovery these losses are not replicated in the compensatory award.[89]No interest is payable on the unfair dismissal elements of the award. Summary A summary of the award is below. Page 15 of 17[91]As the award relates to termination of employment, it is taxable pursuant to section 401 and section 403 of the Income Tax (Earnings and Pensions) Act 2003. The total award is less than £30,000 and can therefore be paid without deductions. No grossing up for taxation is required. Summary of award Past loss of earnings £8,463.35 Interest on past loss £1,009.11 Pension loss £369.77 Injury to feelings £9,000.00 Interest on injury to feelings £2,181.70 Basic award £1,559.00 Compensatory award £500.00 Total award £23,082.93 Application for stay of judgment[92]The respondent has appealed the liability judgment. There is at present no update from the Employment Appeal Tribunal (EAT) as to the current status of the appeal.[93]Mr Wallace applied for an order staying the judgment until after the decision of the EAT. Mr Zaidi on behalf of the claimant objected to this application, saying that at present it was not clear whether the respondent’s appeal had any prospect of success and that justice delayed would be justice denied.[94]We accept Mr Zaidi’s arguments. The matters in issue in the case date back to 2021. The overriding objective requires us to avoid delay so far as practicable. We do not consider there to be any good reason why the standard time for payment under rule 66 (14 days) should not apply in this case.