Ms N Orban v Rohan Designs Ltd: 3307032/2022 and 3308978/2022

EMPLOYMENT TRIBUNALS

Case No 3307032/2022, 3308978/2022

Between

Ms N OrbanClaimant

Rohan Designs LtdRespondent

Before

Employment Judge Mr. A Spencer

Mr. A. Serr (instructed by counsel) for respondent

Date 22 January 2025

JUDGMENT

[1]The following complaints that the respondent failed to comply with section 80G(1) Employment Rights Act 1996 regarding the claimant’s flexible working request are well founded and are upheld:(a) The respondent failed to deal with the claimant’s flexible working request in a reasonable manner contrary to s.80G(1)(a) ERA;

(b) The Respondent failed to notify the Claimant of its decision in respect of her flexible working request within the decision period contrary to s.80G(1)(aa) ERA.

[2]The remaining complaint that the respondent failed to comply with section 80G(1) Employment Rights Act 1996 is not well founded and is dismissed.

[3]The complaint that the respondent rejected the claimant’s flexible working request based on incorrect facts is not well founded and is dismissed. Pregnancy/Maternity Discrimination

[4]The following complaints of pregnancy and maternity discrimination are well founded and succeed: (a) The respondent’s failure to consult the Claimant on changes to product department, communicated to her on 25 April 2022 (and in particular, the failure to consult regarding the creation of a new role of Material Manager);

[5]The remaining complaints of pregnancy and maternity discrimination are not well founded and are dismissed. Indirect Sex Discrimination

[6]The complaint of indirect sex discrimination is well founded and succeeds. Unfair Dismissal

[7]The complaint of unfair dismissal is not well founded and is dismissed. The claimant was not unfairly dismissed.

REASONS

[1]The claimant was employed by the respondent, a designer and supplier of outdoor and travel clothing and footwear, latterly as Production Manager from 14 January 2019 until her employment ended by her resignation on 6 June 2022.

[2]The claimant began a period of maternity leave on 9 June 2021 and applied for flexible working in December 2021. She requested a change to her working arrangements to take effect upon her return from maternity leave. The application was refused by the respondent in March 2022. The claimant’s subsequent appeal against that refusal was also unsuccessful.

[3]The claimant returned to work from maternity leave on 11 May 2022 and resigned from her employment with immediate effect on 6 June 2022.

[4]The claimant presented two claim forms to the tribunal:(a) The first was presented under case number 3307032/2022 on 13 June 2022 following a period of early conciliation via ACAS from 7 April 2022 to 18 May 2022; and

(b) The second was presented under case no 3308978/2022 on 29 June 2022 following a period of early conciliation via ACAS from 20 June 2022 to 23 June 2022.

[5]There was a preliminary hearing for case management on 27 April 2023. The cases were listed together for a final hearing.

[6]Full details of the claims and issues for us to determine are set out in the case management summary from the hearing on 27 April 2023. However, in brief the claimant asserts that:(a) the respondent failed to deal with her flexible working request in accordance with the applicable statutory procedure;

(b) the respondent’s requirement that she must work from their office and could not work partly from home is alleged to be indirect sex discrimination;

(c) various events which occurred from January 2022 to May 2022 are said to be unfavorable treatment because of pregnancy or maternity leave;

(d) the way the respondent handled her flexible working request, her return to work and subsequent grievance entitled her to treat herself as constructively and unfairly dismissed.

[7]There was a discussion at the outset of the hearing about whether the list of issues recorded in the case management summary correctly captured all the issues in the case. After discussing this, the parties agreed on two slight changes to the list of issues. These were of a grammatical/typographical nature. Those changes are reflected in the wording set out in our conclusions. The parties agreed that the revised list of issues captured all the issues for us to determine and no further changes were required.

[8]Various other preliminary issues were discussed at the outset of the hearing. All were dealt with by agreement and the only order arising from those discussions was to discharge a witness order in respect of Sara Malaj. That order was made by agreement.

[9]This judgment relates to liability only. We confirmed at the outset of the hearing that we would deal with remedy (if applicable) after hearing evidence and after giving judgment on liability.

[10]The case was listed for a five-day hearing. Unfortunately, the tribunal was able to source a full tribunal panel for only four days. Rather than postpone the hearing, we heard evidence and submissions on the four days that were available and spent a further day deliberating in chambers before giving this written decision. The parties agreed to this approach. Witnesses

[11]The claimant adduced evidence from the following witnesses:(a) The claimant;

(b) Karen Franck, the respondent’s former Product Director;

[12]For the respondent we heard evidence from:(a) Karen Williams, the respondent’s Product Director and the claimant’s former line manager;

(b) Ian Palmer, the respondent’s Managing Director;

[13]Karen Franck and Joyce Mapesa did not give evidence before us. Their written statements were tendered in evidence.

[14]The other witnesses all gave evidence before us. They all affirmed and confirmed the truth of their written statements. We had the benefit of seeing the evidence tested under cross examination and had the opportunity to put questions to each witness ourselves. Documentary Evidence

[15]We considered the contents of an agreed hearing bundle, a chronology from each party and written closing submissions from each party. Each party was given an opportunity to make oral submissions.

Findings of Fact

[16]There are a great many things the parties do not agree on in this case. However, it is not the role of a tribunal to make findings about absolutely all the factual disputes between the parties. We have limited our findings to those required to determine the claims and issues before us.

[17]Having heard the evidence our findings of fact are as follows:

[18]The respondent company is a designer and supplier of outdoor and travel clothing and footwear. It has more than fifty retail stores with a Head Office in Milton Keynes. It employed approximately 285 employees at the material time. The business had an HR team. Sara Malaj was the respondent’s HR Manager at the time.

[19]The claimant began employment on 14 January 2019 and worked as Production Manager. Her role was office based. She worked from the respondent’s head office. Her role was set out in a detailed job description. Her role was to manage the production team to ensure that goods were produced by the respondent’s suppliers, shipped to the warehouse on time and to maximize profit margins.

[20]The claimant worked full-time. Her working hours were from 9am to 5pm on Monday to Friday each week.

[21]Although the claimant was required to work from the office, her job did not always require an office presence. For example:(a) The claimant’s duties included regular liaison and contact with the respondent’s product development, merchandising and design, marketing and finance teams. However, most communication within the business was conducted by email to ensure that communications were copied to all those who needed to be “kept in the loop” and to ensure that records were kept of the large amounts of information involved;

(b) Much of the claimant’s time was spent reviewing databases, reporting to and liaising with suppliers. Most of those suppliers were in East Asia. Such communication was via email and skype.

[22]We accept the claimant’s evidence that a substantial amount of her work could be done from an office situated anywhere. We also accept that there were also times when it was important that the claimant was physically present in their office to liaise with other members of staff.

[23]The claimant suggested that sourcing new suppliers was a part of her role. This is relevant as the claimant complained about these duties being taken away from her. We find that the claimant undertook some work in this area particularly before Karen Williams began line managing the claimant in March 2020. However, this was a very limited part of the claimant’s role. It was not a part of her job description, and the claimant was unable to give examples of specific suppliers she sourced. We accept that the claimant did some work in this area. However, that work was limited and was not a significant part of her role. This work was mostly undertaken in 2019 with Karen Franck before Ms. Franck was replaced as Product Director by Karen Williams.

[24]Karen Williams joined the business as Product Director in about March/April 2020 and became the claimant’s line manager.

[25]The claimant worked remotely on occasions. For example:(a) from the onset of the Covid pandemic in March 2020 she worked from home in line with Government guidance during the lockdowns; and

(b) In September 2020 she was permitted to work remotely from Hungary for a few weeks when her father had heart failure.

[26]No evidence was presented to suggest that there were any specific problems attributable to the claimant in periods when she worked remotely.

[27]The respondent’s company handbook contained a flexible working policy intended to cover requests for permanent changes to terms and conditions. This was clearly drafted with the statutory right to request flexible working in mind. The handbook also contained a Home Working Policy under which employees could request to work from home for certain specified reasons. These reasons expressly excluded “parenting.”

[28]In January 2021, the claimant told Karen Williams and the respondent’s HR department she was pregnant. The claimant confirmed that she intended to take her full 52 weeks of maternity leave from June 2021 to May 2022.

[29]Arrangements were made to recruit maternity cover for the claimant’s role. This took place in February and March 2021. The claimant was involved in shortlisting and interviewing candidates. The claimant interviewed the successful candidate, Nicola Crawley, and recommended her for the role. Ms. Crawley accepted the offer of a fixed term maternity cover contract ending in April 2022. Ms. Crawley began work on 22 March 2021. This was before the claimant began maternity leave to allow for an appropriate handover period.

[30]In late March/early April 2021, a problem arose after the respondent took product delivery from a supplier. When the delivery was checked it was discovered that thirty boxes of product were missing. After investigation, the conclusion reached by the respondent was that their warehouse staff did not have adequate processes in place when unloading goods. This was identified as the cause of the problem. This is evident from the fact that the recommendation made after the investigation was to ensure that procedures in the warehouse were updated, and staff were trained in the new processes. Poor communication between staff was not the root cause of the problem. The conclusion was that there had been an element of the issue “falling between stools” and that the responsibilities of the various staff members needed to be clearer. The respondent sought to rely on this issue as an example of where effective communication was required and where such effective communication required all staff to be present in the office. However, the conclusion reached in the respondent’s investigation suggests that it was the processes, procedures and lack of clarity over responsibilities that were the main cause of the problem. It was not a good example to support the respondent’s contention that remote working caused or exacerbated problems within the business.

[31]In April 2021, the claimant expressed disappointment to the respondent over maternity pay arrangements. She was disappointed that the respondent’s policy accorded with the statutory minimum rather than, as she put it, “providing more flexibility for expectant mothers.” She also referred to the impact this had on goodwill being greater than the cost to the respondent. With hindsight, this is the first example of a souring of the relationship between the claimant and respondent over maternity arrangements.

[32]In May 2021, shortly before the claimant began her maternity leave, the respondent moved their head office premises.

[33]The claimant began maternity leave on 9 June 2021. She intended to return to work on 11 May 2022.

[34]The claimant’s daughter was born on 12 June 2021.

[35]Ms. Crawley impressed the respondent in providing maternity cover for the claimant’s role. In October 2021, Ms. Williams and Ms. Malaj discussed extending Ms. Crawley’s contract to end in July 2022 after the claimant’s return. Mr. Palmer (the respondent’s Managing Director) asked if a case could be made to keep Ms. Crawley for longer. Ms. Malaj put forward options for keeping Ms. Crawley either by creating an alternative role for her or making Ms. Crawley and the claimant part of a two-person team with expanded duties. It is clear from the wording of her emails that Ms. Malaj foresaw potential problems in managing this with the claimant. For example, she refers to the need to be cautious as the claimant may claim she was being pushed out. She also referred to the need to “manage” and “deal with” the claimant when she returned to work. Ms. Malaj also expressed concern about losing Ms. Crawley due to the claimant’s behavior. There was, however, no evidence of any desire to force the claimant out. In late October 2021, Ms. Crawley’s contract was extended to end in September 2022.

[36]In late summer/autumn of 2021, the claimant made extensive enquiries of local nurseries about childcare. She initially looked for nursery provision for her daughter to cover her full-time working hours. However, she could not find a place. She discovered that nurseries had long waiting lists for places. The only viable option she could find was for the hours from 7:30am to 3:30pm. The journey time from the claimant’s home to the nursery was just under 30 minutes and the journey time from the nursery to the respondent’s office was a further 20 -25 minutes. This nursery provision would enable the claimant to work at the respondent’s office from about 8am to 3pm each day while her daughter was at nursery.

[37]In late 2021 there was a significant issue with faulty products. The respondent’s Alberta jacket was taken off sale due to quality issues. The fault was caused by the manufacturer of the lining fabric applying too much dye. This created a risk of the dye transferring to a garment being worn under the jacket. It was a major issue for the respondent and caused substantial losses. The respondent relied on this issue as another example of a problem caused by or exacerbated by poor communication between staff in the business. They pointed to this as an example of the type of problem that would be caused by or exacerbated by the claimant working remotely. Again, this was not a good example to support this contention. The supplier caused the problem. No compelling evidence was provided to support the contention that the problem was worsened or could have been resolved earlier by lack of communication between staff in the office.

[38]On 2 December 2021, the claimant emailed Ms. Williams to ask to discuss flexible working on her return from maternity leave. It was an informal approach. The claimant’s initial thoughts were to adjust her working hours from 9am to 5pm to 8am to 3pm each day. These hours were to be worked in the office as usual. This would reduce the claimant’s working hours by five hours each week. However, the claimant proposed to maintain her full working hours by working an additional hour each evening from home. The additional hour was to be worked flexibly and fitted around childcare. The claimant confirmed that these adjustments were to enable her to drop off and pick up her daughter from childcare. The claimant also asked whether the respondent might consider a flexible working arrangement for her entire team with the team having the flexibility to work from home for one or two days per week.

[39]After taking advice about the appropriate procedure from Ms. Malaj, Ms. Williams provided the claimant with a copy of the respondent’s flexible working request form on 3 December 2021 and asked the claimant to complete this. The claimant was disappointed with the response. She was expecting the matter to be dealt with informally between her and Ms. Williams.

[40]The claimant submitted a completed flexible working request form to Ms. Williams on 15 December 2021. The request was for a more extensive change to the claimant’s working arrangements than she had initially suggested. The claimant sought the following changes:(a) The claimant’s current working pattern was Monday to Friday from 9am to 5pm (i.e., 8 hours per day including 7.5 working hours and a 30-minute break). The claimant proposed to alter this permanently for her to work from Monday to Friday from 8am to 3pm each day with a further hour to be worked from home each evening, to be worked flexibly around childcare; and

(b) The claimant proposed that up to three of her days each week would be worked from home. The claimant accepted that she would be flexible regarding finish times and would occasionally alter these to accommodate specific meetings or reviews she needed to attend after 3pm.

[41]The claimant confirmed that she saw the change as having a positive impact. Given that most of her team already worked from 8am, she considered that there would be a greater overlap between her working hours and those of her team and the respondent’s suppliers in Asia. She also referred to the fact that working from home had been effective during the Covid lockdowns.

[42]The claimant submitted her request with the expectation that there would be discussion and negotiation, and the result may be a less extensive change than she was seeking. However, she did not make this clear to the respondent.

[43]A meeting to discuss the claimant’s flexible working request took place remotely via Zoom on 7 January 2022. The claimant met with Ms. Williams and Ms. Malaj. In response to Ms. Malaj’s queries, the claimant confirmed:(a) She would have a 30-minute break during her proposed 8am to 3pm working day;

(b) The additional hour would be worked from home each evening around 7:00pm which is when her daughter went to bed;

(d) The claimant was willing to be flexible subject to nursery hours.

[44]The claimant attended the meeting with her baby daughter for understandable reasons. However, both Ms. Williams and Ms. Malaj felt that this was a distraction. They felt sufficiently negatively about this that they recorded this in the minutes of the meeting.

[45]At the meeting Ms. Malaj said to the claimant that she was worried about the claimant’s well-being and that the claimant would not have enough rest as a new mother with a baby to take care of. Ms. Malaj asked how the claimant would cope if she was working late hours. The claimant responded to say that she was used to working late as she had worked a lot of overtime in the past. We accept the claimant’s evidence on this point. Ms. Malaj’s comment is not mentioned in her note of the meeting. However, that note is only a summary of the meeting as opposed to an exhaustive record. Ms. Malaj’s comments clearly annoyed the claimant and stuck in her mind.

[46]After the meeting, Ms. Williams and the claimant exchanged messages concerning the claimant attending work for a “Keep in Touch” (“KIT”) day. There was plainly a difference of perspective. In particular:(a) Ms. Williams took the view that a KIT Day would be beneficial and should take place sooner rather than later. Her view was that a KIT Day would enable the claimant to better understand the changes that had taken place during her maternity leave. Ms. Williams also thought that the KIT Day would help inform the claimant about her flexible working request. This was an entirely legitimate view to take.

(b) In contrast, the claimant had recently had a baby. She was breastfeeding and found it inconvenient and impracticable to attend a full KIT Day as opposed to a shorter visit to the office. The claimant was also concerned about the risk of contracting Covid while visiting the office, particular as her baby had been in intensive care with respiratory problems in the week after her birth. The claimant wanted any KIT days to be closer to her proposed return to work. This too, was an entirely legitimate position to take given the claimant’s circumstances.

[47]The claimant had said in her early messages that she wanted her KIT days to be closer to her anticipated return date. However, this was not expressed with force and the claimant’s strength of feeling about this was not initially apparent from her messages. Certainly, Ms. Williams and Ms. Malaj did not pick up on this.

[48]In the circumstances, a degree of tension developed concerning the claimant’s KIT days. The claimant felt pressurised into attending them. Ms. Williams and Ms. Malaj felt that the claimant was being unnecessarily difficult about them. Neither side seems to have understood the other’s point of view.

[49]The claimant attended the respondent’s office on 1 February 2022 with her daughter for a social visit. As the claimant was about to leave Ms. Williams asked the claimant to reconsider her flexible working request. Ms. Williams shared the experience of a former work colleague from her previous company who was unable to cope with the changes after returning to work from maternity leave and who had then left the company. We accept the claimant’s evidence that these comments were made. They are plainly comments that annoyed her and stuck in her mind.

[50]Mr. Palmer, the respondent’s managing director, sent an email to the respondent’s staff on 25 February 2022 following changes to guidance regarding Covid testing and the need to isolate. He confirmed that all staff were expected to return to work in the office. He expressed this firmly, saying “In summary that means from 1st April there is no expectation to work from home for Covid or any other reason (save for the provisions set out in the handbook). For the avoidance of doubt WEF from 1st April everyone is expected to be full time back to the office”.

[51]The claimant attended a KIT Day for a half-day on the afternoon of 1 March 2022 during which she attended a production meeting. The claimant asked questions about changes since she began maternity leave. Her colleagues reported no major changes. They mentioned delays due to the pandemic which had to be worked around and that shipping costs were rising.

[52]After the KIT half-day, the claimant confirmed that she did not want to change her flexible working request as she remained confident she could conduct her role effectively within her proposed revised working pattern.

[53]A further full KIT Day was arranged for 23 March 2022.

[54]In early March 2022, the respondent refused a request for flexible working made by the respondent’s financial controller, Joyce Mapesa. Ms. Mapesa had asked to work from home for two days per week. Her request was refused. Ms. Malaj gave the reasons for this as follows:  The type of work required to carry out the role requires a regular presence in the office; as Financial Controller we need you to be in regular communication with your colleagues and visible to the business. A great deal of the information that is acquired within this role comes from discussions that take place within a group setting and this cannot be substituted with zoom calls. Whilst COVID forced a way of working from home, this did not present an ideal situation and despite your belief that work was unaffected, this is not always the case.  Approving the request would create unreasonable pressure on the team and the business by needing to make arrangements to reorganise work and meetings amongst other staff.  The company has a duty to ensure that fair and consistent treatment is given to all staff. On that basis, offering contractual working from home days to one individual would require us to do this for all staff and this is not possible in the long term. The working from home policy, in line with other family friendly policies, was introduced to provide the flexibility and balance we understand our employees may need from time to time.”

[55]On 9 March 2022, the claimant chased Ms. Williams for a response to her flexible working request. Ms. Malaj responded on behalf of Ms. Williams on 10 March to say that the plan was for the claimant to come in for a KIT Day for long enough to enable both the claimant and the respondent to ensure that the planned flexible working arrangements could work. In her email Ms. Malaj expressed concern about the claimant being a new mother saying “we have already explained to you our concerns, specifically that you have been away from the office for approximately two years, the change in our office location, you being a new mother and ensuring that we are supporting you, and the significant changes across the world and the impact that has had on the role”

[56]The claimants emailed response on 10 March 2022 was terse in places. This reflected her frustration that her attendance at KIT days was being linked with her request for flexible working and the delay in dealing with her flexible working request. She made it clear that, in her view, the two were unrelated and that she was expecting a prompt decision upon her flexible working request. At the time the claimant was finding the situation stressful. As she put it, she “did not feel she could take it any more.”

[57]The claimant also sent an email to Ms. Malaj (copied to Ms. Williams) on 14 March 2022 to express the view that, having spent half a day in the office, she could not understand what changes there had been to working arrangements that could not be managed if she were to work flexibly. Ms. Malaj did not respond substantively to this request and confirmed that the outcome to the claimant’s flexible working request would be sent later that day.

[58]The claimant says that over the period from late January 2022 to mid-March 2022 the respondent placed her under unreasonable pressure to attend KIT days. She refers to the various emails and verbal requests at paragraph 102 of her witness statement. We have reviewed those emails and considered the verbal requests made by the respondent. The respondent did not put the claimant under unreasonable pressure to attend KIT days. They encouraged her to attend and explained to her why they thought it would be beneficial for her to attend. They did not behave unreasonably in this regard.

[59]Ms. Malaj produced a draft letter to the claimant to confirm that her flexible working request was refused. This was sent to Ms. Williams and Mr. Palmer for comment and amendment. Both agreed with the outcome and had input into the final draft of the letter. The decision was a collective decision reached by Ms. Williams, Ms. Malaj and Mr. Palmer (with Mr. Palmer, as Managing Director, being the most senior of the three).

[60]Ms. Malaj wrote to the claimant on 15 March 2022 to confirm that her request for flexible working was refused. The letter sets out six reasons for the refusal which were:(a) The claimant’s suggested working hours did not allow for the statutory minimum 20-minute rest break;

(b) The claimant’s work required a regular presence in the office to ensure the claimant was in regular communication with her colleagues and direct reports and was visible to the business. The view was taken that remote working would inhibit the acquisition and sharing of information that came with discussions and ad hoc conversations in the workplace.

(c) The person currently covering the claimant’s role (i.e., Ms. Crawley) attended an average of five meetings per day across a five-day working week. This requirement was unlikely to change in the near future.

(d) Approving the request would create unreasonable pressure on the claimant’s team and the business due to the need to reorganise work and meetings amongst other staff.

(e) Offering contractual working from home days to one individual would require the respondent to offer the same for all staff.

(f) The respondent’s existing working from home policy already allowed sufficient flexibility for non-contractual working from home arrangements.

[61]The claimant’s request for flexible working was refused. No alternative arrangement or compromise was suggested by the respondent.

[62]The wording used in Ms. Malaj’s email to the claimant was clearly cut and pasted in some respects from the email she had sent to Ms. Mapesa (see paragraph 54 above. For example, the wording included:  The type of work required to carry out the role requires a regular presence in the office; as Production Manager we need you to be in regular communication with your colleagues and direct report(s) and visible to the business. A great deal of the information that is acquired within this role comes from discussions that take place within a group setting and this cannot be substituted with zoom calls….. …..  Approving the request would create unreasonable pressure on the team and the business by needing to make arrangements to reorganise work and meetings amongst other staff……”

[63]Some of the facts relied on by the respondent in refusing the claimant’s request for flexible working were plainly incorrect. For example:(a) It was plainly wrong to say that the claimant’s proposed working hours from 8am to 3pm did not provide time for her to have a 20-minute break. The break could be taken within those hours.

(b) It was wrong to say that Miss. Crawley was attending an average of five meetings per day across a five-day working week. Miss. Crawley did not attend so many meetings.

(c) It was wrong and a misunderstanding of the law to say that offering contractual working from home to one individual would require the respondent to offer the same to all staff.

[64]The fact that these matters are so obviously wrong is strongly indicative of a closed mindset on the part of Ms. Malaj, Ms. Williams and Mr. Palmer in collectively making the decision to reject the claimant’s request. They were looking for reasons to refuse the claimant’s request even if those reasons did not stand up to scrutiny.

[65]On 17 March 2022 the claimant sent an email to Ms. Malaj (copied to Ms. Williams) to appeal against the refusal of her flexible working request. The letter contains extensive grounds for appeal. However, in summary the claimant addressed each of the six grounds for refusing the request as follows:(a) There would be sufficient opportunity to take the required 20-minute break within the proposed working time of seven hours from 8am to 3pm;

(b) Only some of the claimant’s work required a regular presence in the office with some 75% of the claimant’s working time before maternity leave being spent on tasks which required a high level of concentration (i.e., which did not require liaison with others). The claimant pointed to the success of remote working away from the office during the pandemic.

(d) There would be sufficient overlap between the claimant’s working hours and those of other staff to avoid unreasonable pressure on other staff;

(e) The respondent had misunderstood their legal obligations and was not required to offer others the same flexible arrangements.

(f) The changes could not be covered by the respondent’s existing working from home policy as any arrangements for home working would be subject to change and would only be agreed in special circumstances according to the policy.

[66]The claimant concluded her appeal letter by offering a compromise. She suggested working three days in the office and two from home.

[67]Mr. Palmer conducted the claimant’s appeal. He asked for copies of all the communications with the claimant about her request.

[68]On 22 March 2022 Ms. Williams sent an email to Mr. Palmer and Ms. Malaj in which she gave details of five issues which, in her words, were issues “that potentially would have been caught if in office. These happened earlier on at the start of lockdown and were mainly down to communication and to took longer to resolve than if an immediate meeting would have happened.” One of the five issues was the issue with the missing boxes of product (see paragraph 30 above). Ms. Williams also referred to the problems with the Alberta Jackets (see paragraph 37 above). However, she excluded the latter as an example of a communication problem saying, “I don’t want to mention the colour fastness issue as this was not due to not being in the office and the team were not at fault.” She referred to such challenges with the respondent’s supplier factories having worsened and that this had become “business as usual” rather than something which would improve over the next 12-18 months.

[69]The email from Ms. Williams to Mr. Palmer referred to above is troubling. We were not provided with any email from Mr. Palmer to Ms. Williams in which he asked her to provide this information. Most likely, there was some discussion between Mr. Palmer and Ms. Williams in which he had asked her to email him with information. We find it more likely than not Mr. Palmer had asked Ms. Williams for evidence to support a refusal of the claimant’s request rather than approaching the matter in the balanced way required. The tone and content of Ms. Williams email is indicative of being asked to find problems with the claimant’s request rather than solutions. It is again indicative of an employer who is looking for reasons to refuse rather than dealing with the claimant’s request in a balanced way. Mr. Palmer was not approaching the appeal with an open mind. It was also inappropriate for Mr. Palmer to conduct the appeal. He had been involved in the decision to refuse the initial request. In dealing with the appeal there was an element of him “marking his own homework.” He could not be sufficiently impartial.

[70]Mr. Palmer wrote to the claimant on 21 March to acknowledge her appeal and to invite her to an appeal meeting on 24 March. The claimant responded the same day to say that she would attend the meeting. However, she expressed her view that Mr. Palmer had given “extreme short notice” of the meeting and confirmed that she would be unable to arrange for a companion to attend and would have to bring her daughter as she was unable to arrange childcare. The claimant also asked Mr. Palmer to answer an extensive list of questions seeking to require him to justify the decision to refuse her request for flexible working and to support the decision with evidence. Mr. Palmer plainly saw this as unreasonable. He forwarded the claimant’s email to Karen Williams and Sara Malaj with the comment “WARNING – only read this if you’re prepared to get annoyed” and “As you read it just remember, I’ve got this!.”

[71]On 22 March 2022 Mr. Palmer emailed the claimant to offer her alternative dates for the appeal meeting given her comments about short notice. He offered her times on 31 March and 1 April. He confirmed that he would not be responding to the claimant’s questions as his view was that it was not for him to justify the decision taken. The claimant responded to agree the date of 1 April and commented adversely upon Mr. Palmer’s refusal to answer her questions, which she took as “…. the company is either unable or unwilling to evidence the reasons it has presented for rejecting my request and is unable to demonstrate how those meet any of the 8 business reasons for rejection as set out by ACAS”.

[72]On 23 March 2022, the claimant emailed Karen Williams to cancel a KIT Day arranged for 29 March. She said she would not attend until the issues around her flexible working request were resolved. The claimant’s email was not copied to Mr. Palmer. However, it was Mr. Palmer who responded. Ms. Williams must have forwarded the claimant’s email to Mr. Palmer for him to respond. The respondent has not disclosed the relevant email(s). Mr. Palmer encouraged the claimant to reconsider her position. He pointed out the value of KIT days to the claimant and encouraged the claimant not to link the two matters (noting that the claimant had previously asserted that the two were unrelated).

[73]The claimant responded to Mr. Palmer’s email on 25 March. In her email, she complained about the respondent’s delay in dealing with her flexible working request and confirmed that she had not agreed to extend the statutory threemonth time limit.

[74]The claimant was suffering from the stress of the situation at the time. She was experiencing sleepless nights and was concerned that she was not spending enough time with her daughter. She felt unable to fully focus on her daughter. The tone and content of the claimant’s emails was becoming more combative because of this stress.

[75]The appeal meeting took place on 1 April 2022. It was attended by Mr. Palmer as chair, Kay Brunton (Finance Director) as notetaker and the claimant (who was not accompanied). We have seen the minutes of the meeting. The meeting lasted for about 55 minutes. Superficially, the meeting was handled well. The claimant was given the opportunity to raise the points in support of her appeal. However, we accept the claimant’s assertion that Mr. Palmer approached the meeting without an open mind. He had plainly been looking to Ms. Williams before the meeting to provide him with the necessary evidence to justify refusing the request. During the meeting Mr. Palmer asked the claimant to clarify what the two days of home working were required for. He asked the claimant how these days of home working were required for childcare given that the claimant had already confirmed that her daughter would be attending nursery during the time the claimant was proposing to home work (i.e., she was not expecting to work from home while caring for her daughter). The claimant’s response was that the two days a week would help with childcare as she could drop her daughter off later and pick her up earlier on the days she was working from home. At one point during the meeting, Mr. Palmer said to the claimant that she had a lot of loyalty and belief in the respondent company by saying that the claimant was “clearly fighting to work here” and he appreciated that. He was impressed by how hard the claimant was fighting to retain her position and made the comment for this reason

[76]After the appeal meeting, Mr. Palmer spoke to Ms. Williams about the possibility of proposing an alternative option to the claimant for her to reduce her working hours to 32.5 hours per week. Ms. Williams agreed that this was feasible provided the excess hours were absorbed elsewhere. The claimant’s Production Assistant had been working part time and had recently resigned. Ms. Williams suggested a replacement Production Assistant might be recruited full-time to make up for a reduction in the claimant’s working hours. Ms. Williams also considered that the respondent had the additional support of Ms. Crawley until the end of September 2022 (although shortly after this Ms. Crawley’s contract was extended again to end in 2023).

[77]On 6 April 2022 Mr. Palmer sent an email to the claimant to confirm that her appeal against the refusal of her flexible working request had been refused. The reasons for this were given as:(a) Detrimental effect on ability to meet customer demand;

(b) Detrimental impact upon quality;

[78]It is clear from Mr. Palmer’s email that the reason for his decision was much more focused than the multiple reasons given for the original refusal. The reason was, in his words “I believe that working from home for this team has had a detrimental impact on the business and its performance.” He confirmed that in the period when the production team had been working separately from each other and had not been together in the same office, decision making had been adversely affected, information was missed and mistakes were made in handovers and communication. His view was that this had cost the respondent financially and in terms of quality, performance, saleability and customer feedback. In his letter, he referred to the respondent suffering £500,000 in cost in remedial work or write-off of product and losing £2million in sales. However, most of these losses resulted from the Alberta jacket issue, which was a problem originating from a supplier error and one which Ms. Williams said the Production Team were not at fault for. The evidence relied on by Mr. Palmer in refusing the claimant’s appeal was drawn from Ms. Williams email to him of 22 March 2022. It is troubling that the email refers to the respondent’s losses regarding the colour fastness issue concerning the Alberta jacket when Ms. Williams had expressly said in her email on 22 March that “this was not due to not being in the office and the team were not at fault”. Again, it is indicative of Mr. Palmer using whatever evidence he could to refuse the request for home working.

[79]At the end of his email, Mr. Palmer suggested alternative options which he hoped would work for the claimant and the respondent’s business. These were for the claimant to either:(a) Continue with her current working hours of 9am to 5pm;

(b) Reduce her working hours to either 8am to 4pm or 8am to 3pm with a prorated reduction in salary.

[80]Mr. Palmer also sent the claimant a copy of the minutes of the appeal meeting.

[81]The claimant responded to Mr. Palmer's e-mail on 7th April 2022. Amongst other things she expressed the view that Mr. Palmer's reference to the Alberta jacket issue was in the claimant’s view “slightly disingenuous” as she understood that it was the fabric supplier whose error had caused the problem.

[82]The claimant’s Production Assistant, Irma, was leaving in late April 2022. The claimant was aware of this. Irma had told the claimant that part of her reason for leaving was the respondent’s unwillingness to offer hybrid working.

[83]Karen Williams sent an e-mail to the claimant on 12 April about recruiting a replacement for Irma. She felt it important for the claimant to be part of the selection process as the role reported to the claimant.

[84]Mr. Palmer chased the claimant on 22 April for a decision concerning her working hours. The claimant responded by email on 24 April 2022 to confirm that she would accept a reduction to her working hours from 8:00 am to 3:00 pm each day. The claimant made it clear that this was agreed under protest as she did not accept the refusal of her flexible working request.

[85]In late April 2022 there were discussions between Mr. Palmer, Ms. Williams and Ms. Malaj about the working hours for the replacement Production Assistant. The Production Assistant’s hours would be increased to a full-time role to reflect the reduction in the claimant’s working hours. The claimant was informed of this. The claimant was also informed that a decision had been taken to extend Ms. Crawley's contract to, amongst other things, support a smooth handover to the claimant.

[86]The claimant asked whether Ms. Crawley would be covering the Production Assistant’s role until a permanent replacement was found. Ms. Williams informed the claimant on 26 April 2022 that both the claimant and Ms. Crawley would be expected to cover the Production Assistant’s role until a replacement was recruited and trained up. The claimant responded to this the same day to refuse to take on any of the Production Assistant duties and to suggest that Ms. Crawley should take on this role.

[87]The respondent decided to create a new Materials Manager role which would be responsible for all fabric and trim development. By email on 25 April 2022 Ms. Williams informed the claimant of this and of other changes within the Product Team which had occurred while she was on maternity leave. The claimant’s response was to thank Ms. Williams for the update and to ask for a copy of the job description for the Material Manager role so that she could see how the role interfaced with her own. The claimant sent further emails to Ms. Williams and Ms. Malaj on 29 April and 6 May 2022 in which she repeated her request for a copy of the proposed job description. These requests were not responded to.

[88]The advertisement for the replacement Production Assistant was placed on or about 26 April 2022 after a revised job description was produced.

[89]The claimant took a prominent role in the recruitment of the Production Assistant. The CVs for potential candidates were sent to her, and she commented on 5 May 2022.

[90]The claimant was due to return to work on 11 May 2022. Ms. Williams sent a helpful e-mail to the claimant on 6 May regarding practical arrangements and confirmed that she was looking forward to welcoming the claimant back into the office. Ms. Williams suggested that the claimant shadow Ms. Crawley initially. The claimant responded on 6 May to confirm that she had already created a handover plan in respect of the handover from Ms. Crawley to herself which she sent to Ms. Williams.

[91]Ms. Williams considered that the claimant’s proposed handover plan was too short and sent an e-mail to the claimant on 9 May 2022 to suggest that the process should not be rushed. She also confirmed that once the handover from Ms. Crawley was complete Ms. Crawley would not be acting as the claimant’s Production Assistant although she could assist the claimant particularly while the claimant was recruiting a replacement Production Assistant.

[92]The claimant responded the same day, addressing her response to Mr. Palmer. Her e-mail was terse. For example, she referred to “continual inconsistencies and contradictions in the communications I have received” and the fact that she was getting “increasingly stressed about my return from maternity leave.” She confirmed that she had not agreed to share her role with Ms. Crawley or to share the Production Assistant role. She asked for clarification as to what Ms. Crawley's role would be going forward. She referred to having requested the new Material Manager job specification several times without any reply. She also made it clear that she was not willing to pick up the Production Assistant’s duties in addition to her own even temporarily nor would she need to perform any of the Production Assistant’s tasks to be able to recruit a replacement. The claimant concluded her e-mail by saying “I would appreciate some clarity on the situation prior to my return, as it seems to me that my role has been changed substantially in my absence, despite written and verbal communication that this is not the case.”

[93]Mr. Palmer's response the same day was brief and to the point. He responded to the claimant’s concluding paragraph by saying “I can confirm that your role has not been changed substantially in your absence.”

[94]The claimant sought to escalate her concerns by sending an e-mail to the respondent’s parent company H. Young Holding Limited on 9 May 2022. The immediate response was to suggest that Mr. Palmer was dealing with the matter, and it could be left to Sarah Besant of H. Young to deal with on her return.

[95]The claimant’s maternity leave ended, and she returned to work on 11 May 2022. Ms. Williams sent an email to all staff that day to welcome the claimant back and to confirm that Ms. Crawley would continue to work with the claimant during the handover and would support her in recruiting a replacement production assistant. Ms. Crawley informed the claimant on this date that her contract had been extended to the end of 2023.

[96]The claimant confirmed to Ms. Williams on 12 May 2022 that she had reviewed the handover plan with Nicola Crawley and anticipated it would be complete by the end of May.

[97]On 15 May 2022, the claimant submitted a formal grievance to Ms. Williams about her flexible working request and her return to work. The matters complained of were:(a) The handing of and refusal of her flexible working request;

(b) the assertion that Ms. Crawley was still employed in the claimant’s role and Ms. Williams had not supported her suggested handover plan instead suggesting an open-ended arrangement;

(c) the claimant had been asked to take on the Production Assistant role until a newly recruited Production Assistant began work;

(d) Ms. Crawley’s contract was extended to the end of 2023, significantly beyond any handover period. Further, Ms. Crawley was asked to take on a more strategic senior role which related to sourcing and the claimant’s role.

[98]No complaint was made by the claimant in her grievance about any delay in recruiting for the Production Assistant role.

[99]The claimant was provided with the CVs for the Production Assistant candidates. She reviewed these and provided feedback to Karen Williams on the candidates on 16 May 2022.

[100]The job description for the new Materials Manager role was finalised on about 16 May 2022.

[101]The claimant began Early Conciliation via ACAS on 18 May 2022.

[102]The claimant was invited to attend a grievance hearing on 20 May 2022 to be conducted by Richard Morrison, the respondent's Retail Director.

[103]The claimant attended the grievance hearing on 20 May 2022. The hearing was conducted by Mr. Morrison with Ms. Malaj as note taker. (replaced by Mark Wilson IT Director). The minutes of the meeting are an accurate record of the meeting. The meeting was conducted fairly. Mr. Morrison gave the claimant a fair opportunity to discuss her grievances with him. He went through matters systematically. Ms. Malaj was removed as notetaker once it became apparent that she was involved in some of the matters which gave rise to the grievance. It was a fairly conducted grievance hearing.

[104]The claimant contacted Karen Williams on 24 May 2022 to ask if she was happy for the claimant to proceed with interviews for the candidates for the Production Assistant role. Ms. Williams responded positively the same day.

[105]Mr. Morrison wrote to the claimant on 27 May 2022 to confirm the outcome of the claimant’s grievance. He did not uphold the claimant’s grievance. His reasons are fully set out in his letter to the claimant.

[106]There was what was described as a “minor altercation” between the claimant and Nicola Crawley on about 26 May 2022. Ms. Crawley made complaints the following day about the claimant’s behavior toward her.

[107]The claimant interviewed a candidate for the Production Assistant role on 1 June 2022 and reported to Karen Williams after the interview. As the candidate was not ideal Ms. Williams suggested various options including contacting an agency to bring in a temporary replacement while the claimant continued to recruit.

[108]The claimant decided to resign after considering matters over the long bank holiday weekend at the end of May. She wrote to Mr. Palmer on 6 June 2022 to confirm that she was resigning with immediate effect. She asserted that the respondent had breached the implied term of mutual trust and confidence and cited six specific respects in which the respondent had done so. These were:(a) failing to consider her request for flexible working in a fair and timely manner;

(b) unreasonably refusing the request;

(c) requiring the claimant to perform the duties of Production Assistant and to shadow Ms. Crawley upon the claimant’s return from maternity leave;

(d) offering Ms. Crawley another role without offering the claimant that opportunity;

(e) assigning what were described by the claimant as “strategic duties” to Ms. Crawley which were previously undertaken by the claimant and thereby demoting and undermining the claimant;

(f) Ms. Crawley requiring the claimant to perform Production Assistant duties while was focused on the “strategic activities.” Again, this was said to be a demotion and undermining of the claimant.

[109]Mr. Palmer responded to the claimant’s resignation letter on 10 June 2022. In his letter, Mr. Palmer replied at length to the issues raised by the claimant and confirmed the claimant’s last day of service as 6 June 2022. Discussion/Conclusions/Applicable Law

[110]Applying the law to the facts of this case our conclusions on the various claims and issues are as follows. Claim 1: Flexible Working

[111]Section 80F Employment Rights Act 1996 (ERA) gives a qualifying employee a limited statutory right to apply to his/her employer for “contract variation” (i.e., a change to his/her terms and conditions). This is commonly known as the “right to request flexible working.” 80F Statutory right to request contract variation (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.

[112]There is no dispute that the claimant is a qualifying employee for these purposes. Nor is there any dispute that the claimant made such an application to the respondent on 15 December 2021.

[113]The claimant complains that the respondent has not complied with the statutory procedural requirements in dealing with her application.

[114]Section 80G ERA sets out the statutory duties that an employer is subject to when an employee exercises their right. This includes requirements to:(a) Deal with the application in a reasonable manner (s80G(1)(a));

(b) Refuse the application only on one or more of nine specified grounds (s80G(1)(b));

[115]The decision period is defined in s80G(1B) as either:(a) the period of three months beginning with the date on which the application is made, or

(b) such longer period as may be agreed by the employer and the employee.

[116]Section 80G(1B) was amended in April 2024 to reduce the decision period to two months. This case concerns events before that amendment and so the applicable period is three months.

[117]Section 80H ERA 1996 gives an employee who applies under s80F the right to present a complaint to an employment tribunal about certain limited matters. These are set out in s80H(1) ERA which includes:(a) that his/her employer has failed in relation to the application to comply with section 80G(1);

(b) that a decision by his/her employer to reject the application was based on incorrect facts.

[118]The issues for us to determine in respect of the flexible working complaint and our conclusions upon those issues are as follows: Flexible Working Issue 1: Did the Respondent fail to deal with the Claimant’s flexible working request in a reasonable manner contrary to s.80G(1)(a) ERA?

[119]The remit of a tribunal is limited. Section 80G(1)(a) speaks of dealing with the request in a reasonable manner (our emphasis). ACAS produced a Code of Practice for dealing with Flexible Working requests (The ACAS Code of Practice 5: Handling in a Reasonable Manner Requests to Work Flexibly). That Code was updated in 2024. It is the original version introduced in 2014 that is applicable in this case. The ACAS Code refers to requests being handled in a reasonable manner – as opposed to decided in a reasonable manner (our emphasis). A tribunal should not substitute its decision for that of the employer. Our role is more limited. A tribunal should consider whether the correct procedure has been followed. Normally, an employer who follows the procedure set out in the ACAS Code will have dealt with the request reasonably. However, an employer should also deal with the request in good faith and genuinely consider that one or more of the statutory grounds for refusal applies.

[120]We considered whether the respondent complied with the ACAS Code. They did so in many respects. For example, by:(a) Making it clear to the claimant by providing the flexible working request form what information she needed to include in a written request to work flexibly;

(b) Considering the request and arranging to talk with the claimant as soon as possible after receiving the written request.

(d) Once a decision was made, the respondent informed the claimant of the decision as soon as possible (and in writing);

(e) Ultimately rejecting the request for one of the permissible business reasons;

(f) Allowing the claimant to appeal the initial decision.

[121]However, the respondent did not comply with the Code in the following respects:(a) They did not deal with the request sufficiently promptly and did not do so within the statutory three-month time limit (see below);

(b) They did not consider the request carefully, looking at the benefits of the requested changes for the employee and the employer’s business and weighing these against any adverse business impact in implementing the changes. The request was not considered with good faith and with the open mindset required (see below).

[122]In the circumstances, the complaint is upheld. The respondent failed to deal with the claimant’s flexible working request in a reasonable manner contrary to s.80G(1)(a) ERA? Flexible Working Issue 2: Did the Respondent refuse the Claimant’s flexible working request in reliance on a permissible ground in accordance with s.80G(1)(b) ERA?

[123]The statutory procedure permits an employer to reject a request for flexible working only on one or more specified grounds. The respondent ultimately refused the claimant’s request on the grounds of:(a) Detrimental effect on ability to meet customer demand; and

(b) Detrimental impact upon quality; and

[124]All three are within the list of permissible grounds in section 80G(1)(b). Consequently, this complaint fails. The initial refusal of the claimant’s flexible working request in March 2022 was not made on permissible grounds. However, it is the decision upon the appeal that must be considered. That decision was refused on permissible grounds. Thus, this complaint fails. Flexible Working Issue 3: Did the Respondent fail to notify the Claimant of its decision in respect of her flexible working request within the decision period, s.80G(1)(aa) ERA?

[125]The time limit begins to run from the date the request was submitted on 15 December 2021.

[126]There is a question as to when, for the purposes of the statute, the respondent notified the claimant of their decision – is it when the initial refusal was notified to the claimant or when the outcome of her appeal was notified to her? Section 80G(1A) answers this by stating that a decision on an application is a reference to “the decision on the appeal” (or “the decision on the final appeal” if there is more than one appeal). Thus, the claimant submitted her request for flexible working on 15 December 2022, and the respondent notified her of their decision when refusing her appeal on 6 April 2022. This is approximately three weeks outside the time limit. There was no express agreement between the parties to extend the period. There was an implicit agreement between the parties to delay the claimant’s appeal hearing by a week from the original proposed date of 24 March to 1 April 2022 when the claimant complained about the short notice given. However, even considering this, the respondent failed to notify the claimant within the three-month decision period. This complaint is successful. Flexible Working Issue 4: Was the Respondent’s decision based on incorrect facts, s.80H(1)(b) ERA?

[127]In Commotion ltd v Rutty

[2006] ICR 290

and again in Singh v Pennine Care NHS Foundation Trust (EAT 0027/16) the Employment Appeal Tribunal held that it is not for an employment tribunal to judge the reasonableness of an employer’s refusal to provide flexible working. It simply needs to investigate the facts on which the decision was based to determine whether the decision is based on incorrect facts. It is for the claimant to show an incorrect factual basis for the respondent’s decision (i.e., the decision after appeal). The thrust of the claimant’s argument on this point is that she says the respondent reached the wrong decision and without enough evidence to support it. She does not point to any incorrect facts. Her case is that the respondent reached the wrong decision in reliance on those facts and/or that there was insufficient evidence to justify the conclusion reached.

[128]The respondent’s initial refusal of the claimant’s flexible working request was refused, in part, on incorrect facts (see paragraph 63 above). However, the final decision following the claimant’s appeal is the decision that we must consider. We find that the final decision was not based on incorrect facts. Mr. Palmer reached the wrong decision for the reasons we will come to below. He was entitled to consider the facts and evidence he did. Those facts were not “incorrect.” Where he went wrong was in weighing up those facts and failing to consider the decision with an open mind (i.e., he reached the wrong subjective decision but based on correct facts). Thus, the complaint fails. Claim 2: Indirect Sex Discrimination

[129]Sections 39 and 40 of the Equality Act 2010 (“EQA”) prohibit the discrimination and harassment of employees by employers. There is no dispute that that claimant was an employee of the respondent.

[130]The type of unlawful discrimination alleged in this case is Indirect Discrimination which is defined in section 19 EQA in this way: 19 Indirect discrimination(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.

[131]Section 19(3) lists the relevant protected characteristics for section 19. These include sex but do not include pregnancy and maternity.

[132]There are four conditions in section 19(2) EQA which must be met before a successful claim for indirect discrimination can be established. They are:(a) there must be a provision, criterion or practice (PCP) which the employer applies or would apply to employees who do not share the protected characteristic of the claimant;

(b) that PCP must put people who share the claimant’s protected characteristic at a particular disadvantage when compared with those who do not share that characteristic;

(d) the employer must be unable to show that the PCP is justified as a proportionate means of achieving a legitimate aim.

[133]The EQA deals with the burden of proof in such cases at sections 136(2) and (3) as follows:

[136]Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.

(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.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision. 134. Section 136 requires the claimant to show ‘prima facie evidence’ from which the tribunal could conclude, in the absence of any other explanation, that an employer has committed an act of discrimination. Section 136 goes on to provide that once the claimant has shown a prima facie case, the tribunal is obliged to uphold the claim of discrimination unless the respondent can show that no discrimination occurred. In the context of an indirect discrimination case the burden rests on the claimant to prove the first three of the four conditions listed above. Once the claimant has done so, the burden shifts to the respondent to prove the fourth condition. 135. In determining discrimination claims we must have regard to the Equality and Human Rights Commission Code of Practice on Employment (the EHRC Code) 136. The list of issues in this case breaks up the four elements set out above into six distinct questions. However, this merely reflects the fact that some of the four essential elements described above have been broken up into sub questions. Taking each of those issues in turn, our conclusions are as follows: Indirect Discrimination Issue 1: Did the Respondent have a rule whereby all Head Office staff were required to work from the office? Does this amount to a PCP?

[137]The EHRC Code confirms that the term ‘provision, criterion or practice’ (PCP) is capable of covering a wide range of conduct, noting: ‘The phrase… is not defined by the Act but it should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions’ — para 4.5.

[138]The respondent concedes that they expected the claimant to work in their office on her return to work from maternity leave. This policy was applied to other staff at the respondent’s Head Office. For example, it was cited as the reasons for rejecting Ms. Mapesa’s request for home working and is reflected in the email Mr. Palmer sent to all staff in February 2022 in which he made it clear that there was a requirement to work from the office with effect from 1 April 2022. The respondent plainly had this rule/policy which was a PCP for the purposes of section 19 EQA. Indirect Discrimination Issue 2: If so, did the Respondent apply that PCP to the Claimant?

[139]The respondent accepts that the PCP was applied to the claimant. It was applied to the claimant both in response to her initial request for flexible working and in the outcome of her appeal. Indirect Discrimination Issue 3: Did the Respondent apply the same PCP to individuals who do not possess the same protected characteristic (i.e., sex) as the Claimant?

[140]The respondent accepts that the PCP was applied to such other individuals. It was applied to all the respondent’s office-based staff. Indirect Discrimination Issue 4: Did that PCP place women at a particular disadvantage compared to men?

[141]The EHRC Code states that ‘disadvantage’ is ‘something that a reasonable person would complain about.” An unjustified sense of grievance will not count. The worker does not have to experience loss (economic or otherwise). The question is whether ‘a reasonable worker would or might take the view that he had… been disadvantaged in the circumstances in which he had thereafter to work.’

[142]The claimant’s subsequent compliance with the PCP by returning to work in the office does not remove any disadvantage. Disadvantage is not limited to instances where an individual is refused or barred from something that he or she wants.

[143]One must look at context to answer this question. Is there some contextual factor which creates a discriminatory impact of the PCP as regards women?

[144]The claimant has not advanced any statistical evidence to prove that women are disadvantaged by the application of the relevant PCP. However, employment tribunals are entitled to take judicial notice in appropriate cases, particularly where the effect of the application of a PCP requires an examination of social attitudes and practices.

[145]Despite recent changes in social attitudes, it is still the case that primary childcare responsibility falls largely on women. As more men take on childcare responsibilities, this position may change. The day will hopefully come when tribunals can no longer assume that women will be disproportionately adversely affected by such requirements as a refusal to permit home / remote working. However, that is not yet the case. Women are more often than not the primary child carers who have to fit caring and/or home responsibilities around their work. A PCP of not allowing any home or remote working creates an obvious disadvantage by making that balancing of work and caring/home responsibilities more difficult. Indirect Discrimination Issue 5: Did that PCP put the Claimant at that disadvantage?

[146]Under section19(2) EQA the claimant must prove that the PCP puts (or would put) her at ‘that disadvantage’, i.e., the same disadvantage as those others who share the relevant protected characteristic.

[147]The respondent argues that the claimant suffered no disadvantage. They are right but only in part. The respondent correctly asserts that it made no difference to the claimant whether she worked the hours from 8am to 3pm at home or in the office. In both instances, the claimant would put her daughter in nursery and would have similar travel times. The claimant did not identify any disadvantage to her in being required to work the hours from 8am to 3pm from the office. However, the respondent’s argument misses the obvious disadvantage to the claimant. It ignores the part of her request whereby she asked to work five hours per week from home in the evenings. There is a clear disadvantage to the claimant in denying that part of her request. The claimant could not obtain childcare to cover her full working hours. Thus, the respondent’s PCP placed her in a position where she could not work her full hours and would have to suffer a loss of salary equivalent to the five hours per week. That is plainly a disadvantage to the claimant. Indirect Discrimination Issue 6: Can the Respondent show that the PCP is a proportionate means of achieving a legitimate aim in the circumstances?

[148]The justification test in section 19(2)(d) EQA requires that the application of the PCP is a ‘proportionate means of achieving a legitimate aim’.

[149]In this case, the respondent clearly has a legitimate aim. That aim is for the respondent to meet customer demand, and to achieve satisfactory levels of quality and performance by ensuring that its staff can communicate and work together effectively.

[150]The more significant issue is whether the respondent has proven that the PCP is a proportionate means of achieving that legitimate aim. This requires us to consider whether there were alternative, less discriminatory alternatives available to the respondent.

[151]The EHRC Employment Code puts it in these terms: ‘Even if the aim is a legitimate one, the means of achieving it must be proportionate. Deciding whether the means used to achieve the legitimate aim are proportionate involves a balancing exercise. An employment tribunal may wish to conduct a proper evaluation of the discriminatory effect of the provision, criterion or practice as against the employer’s reasons for applying it, taking into account all the relevant facts’ — para 4.30.

[152]We find that the respondent’s PCP was a disproportionate means of achieving that legitimate aim. In simple terms – they went too far and were too inflexible. Adopting more flexibility and allowing some home / remote working would have been a more proportionate means of achieving that legitimate aim. For example, allowing the claimant to work five hours per week from home would, in our view, have had no appreciable impact on the respondent’s ability to meet their legitimate aim. Plenty of the claimant's duties could be undertaken from home. It is likely that the claimant could perform those tasks more efficiently at home as she would be able to “shut herself away” for an hour each evening and focus on those tasks which were best performed without interruption. The respondent’s arguments as to why it was not feasible for the claimant to have worked from home for five hours per week were weak. In particular:(a) there was ample work within the claimant’s role which was suitable to be undertaken from home;

(b) five hours per week spent at home would not adversely affect the claimant’s ability to communicate with her colleagues – it represented less than 15% of her weekly working time;

(c) it would not have been difficult to require the claimant to complete a timesheet (or similar) to verify the hours worked and the tasks undertaken. In contrast, the effect on those who share the claimant’s protected characteristic was much more significant. The disadvantage to the claimant resulting from the respondent’s PCP is likely to be typical of the experience of other women within the respondent’s business with childcare responsibilities given the position set out at paragraph 145 above.

[153]The discriminatory effect of the respondent’s PCP is substantial in this case. The PCP was not a proportionate means of achieving the respondent’s legitimate aim. Adopting greater flexibility and allowing some remote / home working would have been a more proportionate (and less discriminatory) approach for the respondent to take.

[154]On the facts of this case, requiring the claimant to attend work for her working hours of 8am to 3pm and permitting her to work remotely from home for five hours per week would have been a proportionate means of achieving the respondent’s legitimate aim. That would have been a less discriminatory but equally effective measure. Claim 3: Discrimination because of maternity leave.

[155]Under section 18 of the EQA it is, in certain circumstances, unlawful for an employer to discriminate against a woman by treating her unfavorably because of pregnancy/maternity: 18 Pregnancy and maternity discrimination: work cases ……. (2)A person (A) discriminates against a woman if, in or after the protected period in relation to a pregnancy of hers, A treats her unfavourably — (a)because of the pregnancy, or (b)because of illness suffered by her in that protected period as a result of the pregnancy. (3)A person (A) discriminates against a woman if A treats her unfavourably because she is on compulsory maternity leave or on equivalent compulsory maternity leave]. (4)A person (A) discriminates against a woman if A treats her unfavourably because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave or a right to equivalent maternity leave. (5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (6)The protected period, in relation to a woman's pregnancy, begins when the pregnancy begins, and ends— (a)if she has the right to ordinary and additional maternity leave, at the end of the additional maternity leave period or (if earlier) when she returns to work after the pregnancy; (aa)if she does not have that right, but has a right to equivalent maternity leave, at the end of that leave period, or (if earlier) when she returns to work after the pregnancy; (b)if she does not have a right as described in paragraph (a) or (aa), at the end of the period of 2 weeks beginning with the end of the pregnancy.

[156]In determining the complaint under this section, we have considered:(a) Whether the behaviour/treatment complained of took place;

(b) Whether it was unfavourable treatment. In this regard, paragraphs 8.21 to 8.23 of the EHRC Code provide guidance as to how to interpret the word “unfavourable” as follows: Unfavourable treatment 8.21 An employer must not demote or dismiss a woman, or deny her training or promotion opportunities, because she is pregnant or on maternity leave. Nor must an employer take into account any period of pregnancy-related sickness absence when making a decision about her employment. 8.23 The following are further examples of unlawful discrimination:

• failure to consult a woman on maternity leave about changes to her work or about possible redundancy;

• disciplining a woman for refusing to carry out tasks due to pregnancy related risks;

• assuming that a woman’s work will become less important to her after childbirth and giving her less responsible or less interesting work as a result;

• depriving a woman of her right to an annual assessment of her performance because she was on maternity leave;

• excluding a pregnant woman from business trips. Further, the Supreme Court, in the case of Williams v Trustees of Swansea University Pension & Assurance Scheme [2018] UKCS 65 referred at paragraph 27 of the Judgment to “the relatively low threshold of disadvantage which is sufficient to trigger the requirement to justify under this section”. This was in the context of a complaint of disability discrimination under section 15 EQA. However, section 15 also uses the word “unfavourably”.

(c) Whether it was because of a matter prohibited by section 18 EQA. In this regard the words “because of” require us to be satisfied that the prohibited reason was either consciously or unconsciously “significant influence” for the unfavourable treatment. It does not have to be the sole reason for the unfavourable treatment. Further, whether the motivation was benign or malign is irrelevant; and

(d) (where applicable) whether the behaviour took place in the “protected period” which, in this case, begins when the claimant’s pregnancy began and ended when she returned from maternity leave on 11 May 2022.

[157]The claimant asserts that there are eleven ways in which she was discriminated against for the purposes of section 18 EQA. Most of these complaints have failed because the claimant has failed to show:(a) that the conduct complained of was “unfavourable” ; and/or

(b) that the reason why the conduct occurred was because of the claimant’s pregnancy, maternity leave or any of the other impermissible matters in section 18 EQA.

[158]Taking each in turn:a. On 7 January 2022, the Respondent expressed concerns about the Claimant’s wellbeing;

b. On 10 March 2022, the Respondent expressed concerns again;

[159]We deal with these two complaints together as they are essentially a complaint that the same or similar behaviour was repeated on the two occasions.

[160]This behaviour did occur. We refer to paragraphs 45 and 55 above.

[161]This behaviour was because of the claimant’s pregnancy. Ms. Malaj had genuine concerns about the claimant’s welfare because of her pregnancy. Further, both incidents took place within the protected period.

[162]However, whilst Ms. Malaj’s comments were a little patronising and annoyed the claimant, expressing such concerns about the claimant’s welfare does not amount to “unfavorable treatment.”

[163]For these reasons, these complaints are not successful. c. On several occasions, the Respondent “attempted to force” the Claimant to attend KIT days and the correspondence around this;

[164]We find on the evidence before us that this did not happen, and it was not unfavourable treatment. The claimant was not forced to attend KIT days. The respondent encouraged her to attend. There was no unreasonable or coercive behaviour.

[165]This complaint is not successful. d. On 1 April 2022, the Respondent made a comment in a meeting that the Claimant was “clearly fighting to work there”;

[166]Mr. Palmer made this comment during the appeal meeting (see paragraph 75 above).

[167]However, it was not unfavourable treatment. Nor was the comment because of any of the matters prohibited by section 18 EQA. It was made because Mr. Palmer was genuinely impressed by how hard the claimant was fighting to retain her position.

[168]This complaint is not successful. e. On 6 April 2022, the Respondent declined the Claimant’s appeal on her flexible working application and offered her alternatives of returning to work on her original contracted hours, reducing her hours or, in the event the Claimant decided none of the alternative options were suitable and she did not wish to return to work at all, resigning;

[169]The respondent did behave in the way complained of (see paragraph 77 above).

[170]The conduct was plainly unfavourable and occurred within the protected period.

[171]However, the conduct was not because of any of the matters prohibited by section 18 EQA. The reason for the respondent’s conduct was because they had considered the claimant’s request for flexible working and concluded that it should not be granted for the business reasons referred to in Mr. Palmer’s letter.

[172]This complaint is not successful. f. Failure to consult the Claimant on changes to product department, communicated to her on 25 April 2022;

[173]This behaviour occurred. Changes were made to the product team in the claimant’s absence on maternity leave. The changes were:(a) A member of the team was leaving in June 2022. The contract of another team member had been extended to cover the workload while a replacement for the departing team member was recruited; and

(b) The role of one member of the team had been made permanent and another’s hours had been extended slightly;

[174]The claimant was not consulted about those changes before they were made. She was notified of the changes on 25 April 2022 shortly before her return from maternity leave (see paragraph 87 above). In her email, Ms. Williams refers to the changes as “significant.” The failure to consult the claimant took place within the protected period and because the claimant was on maternity leave. As manager of the Product Team, the claimant would normally have expected to be consulted about such changes before they were made. The respondent did not consult the claimant because she was on maternity leave.

[175]The determination of this complaint depends on whether the treatment concerned was unfavourable.

[176]We find that the treatment was unfavourable. The claimant’s initial response to the email is significant. She responded by saying “Thanks for letting me know. Great news on the expansion of the fabric/material team. Could you please send me the job description of the material manager role so I can see how it interfaces with mine.” The claimant plainly had no issue with most of the changes with the notable exception of the Material Manager role. This change had the potential to change the claimant’s job role. The new role was at the same or similar managerial level to the claimant’s role. It would result in three members of staff reporting to the new Material Manager. It would potentially impact upon the claimant’s role in other ways (depending on the scope of the job description for the Material Manager role). The claimant clearly recognised this as she immediately requested a copy of the job description. The failure to consult the claimant about most of the changes was not unfavourable treatment. However, the failure to consult with the claimant about the Material Manager role was unfavourable treatment. Adopting the wording of paragraph 8.23 of the EHRC Code, it was a “failure to consult a woman on maternity leave about changes to her work.” Ms. Williams had described those changes as “significant.” The respondent should have at least given the claimant an opportunity to be consulted about this change. That failure was unfavourable treatment.

[177]The complaint is successful g. Failure to respond to the Claimant’s requests for information and job descriptions;

[178]In the claimant’s written closing submissions, she clarified that her complaint was twofold. This complaint relates to:(a) The failure to provide her with the job description for the Materials Manager role when she requested this; and

(b) Mr. Palmer’s refusal to answer the claimant’s detailed request for justification and evidence to support the decision to refuse her request for flexible working (see paragraph 70 above).

[179]Both events occurred.

[180]The failure to provide the job description for the Material Manager role was unfavourable to the claimant. It was clearly a significant concern for her that the new managerial role would impact upon her own role. The claimant requested the job description on several occasions, and it was not provided. However, the reason for this failure was not a prohibited reason within section 18 EQA. The reason was simple – the job description was not finalised until 16 May 2022. It is unfortunate that the respondent did not respond to the claimant’s request by telling her that the job description had yet to be finalised and would be provided once it was. However, the failure to provide the job description was not because of the claimant’s pregnancy, maternity leave or any of the other impermissible reasons within section 18 EQA. This complaint fails for this reason.

[181]Mr. Palmer’s refusal to answer the claimant’s detailed request for justification and evidence to support the decision to refuse her request for flexible working was not unfavourable treatment. He had no obligation to provide such details. The claimant would have an opportunity to explore matters at the appeal hearing. Furthermore, Mr. Palmer’s refusal was not because of the claimant’s pregnancy, maternity leave or any of the other impermissible reasons within section 18 EQA. The reason for his refusal was that he thought the correspondence with the claimant was becoming overly lengthy and unproductive and that matters were better discussed at the appeal meeting.

[182]This complaint is not upheld. h. On 6 May 2022 and thereafter in relation to handover to the Claimant;

[183]This wording does not disclose any coherent allegation for us to determine. In her written closing submissions, the claimant clarified this. Her complaint is that she was asked to take more time than she thought necessary to complete the “handover” from Ms. Crawley when she returned from maternity leave and that she was asked to share the work of the vacant production assistant’s role while a replacement was recruited. This happened. On 9 May 2022 Ms. Williams asked the claimant to undertake a longer handover period than the claimant thought necessary. Further, she asked the claimant to share some of the duties of the vacant production assistant’s role while a replacement was recruited. However, it was not unfavourable treatment. It was a perfectly reasonable managerial instruction to ask the claimant to take more time to conduct the handover. It is also reasonable managerial instruction for the claimant to cover some of the production assistant’s duties temporarily while a replacement was recruited. This was not unfavourable treatment. In any event, the reason for the request was not because of the claimant’s pregnancy, maternity leave or any other prohibited reason within section 18 EQA. It was because Ms. Williams took the legitimate view that:(a) the handover of duties and responsibilities would be smoother and more effective if it were not rushed; and

(b) temporarily covering some of the production assistant’s duties was necessary as the role was vacant. It would also help the claimant “get back up to speed” and would give her a better understanding of the role and what skills were required when recruiting for the role.

[184]This complaint is not upheld. i. On 9 May 2022, the Respondent stated that the Claimant’s role had not substantially changed and did not respond to the Claimant’s specific questions;

[185]This occurred. Mr. Palmer did state this in his email on 9 May 2022.

[186]This was plainly not unfavourable treatment and was not because of the claimant’s pregnancy, maternity leave or any other reason prohibited by section 18 EQA. Mr. Palmer read the claimant’s email and took the view that the claimant’s specific questions were all focused on clarifying what changes had been made to her role in her absence. Rather than responding in detail, Mr. Palmer thought it was better to succinctly assure the claimant that her role was unchanged.

[187]This complaint is not upheld. j. The Respondent’s decision to extend the employment of the Claimant’s maternity cover and to allocate certain responsibility and offer opportunity to her whilst the Claimant was asked to cover aspects of the production assistant role and her request to consider agency cover was ignored;

[188]These events happened. However:(a) The treatment of others (i.e., Ms. Crawley) was not unfavourable treatment of the claimant. In any event, the way Ms. Crawley was treated was because she had impressed the respondent. They wanted to retain her and use her skills. It was not because of the claimant’s pregnancy, maternity leave or any other prohibited reason within section 18 EQA.

(b) The request for the claimant to temporarily cover some of the duties of the vacant production assistant role and not to cover this with an agency worker was not unfavourable treatment and was, in any event not because of the claimant’s maternity leave or any other prohibited reason within section 18 EQA.

[189]The complaint is not successful. k. Was the Claimant treated unfairly upon her return after maternity leave?

[190]This is a highly generalised allegation. The claimant sought to clarify this in her written closing submissions by asserting that she was demoted from her role when told she would not be travelling anymore. She says this was a part of her role when sourcing new suppliers. This was not a demotion. We refer to our conclusion about the claimants sourcing of new suppliers in paragraph 23 above. In any event, the reason for this decision was not because of the claimant’s pregnancy, maternity leave or any other reason prohibited by section 18 EQA.

[191]This complaint is not successful. Claim 4: Constructive/Unfair Dismissal

[192]A claimant who wishes to claim unfair dismissal must show that he or she has been dismissed within the meaning of section 95 ERA. The claimant asserts that she was constructively dismissed. The claimant must show that she was constructively dismissed (section 95(1)(c) ERA). If the claimant demonstrates that she was constructively dismissed, we must go on to consider whether the dismissal was fair by applying the test in section 98 ERA. Was the claimant constructively dismissed?

[193]It is convenient to deal with some of the issues together. Did the Respondent’s treatment of the Claimant in relation to its handling of her flexible working request, her return to work and her grievance amount to a breach of the implied term of trust and confidence in the Claimant’s contract of employment? Did the Respondent act in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between them?

[194]In summary, on the evidence before us, the wrongdoing by the respondent that might amount to a breach of the implied term of trust and confidence is:(a) The delay in dealing with the claimant’s flexible working application, which we have also found to be a breach of the statutory procedure. This delay ended when the decision on the appeal was communicated to the claimant on 6 April 2022;

(b) The refusal of the claimant’s flexible working request on 6 April 2022 (which we have also found to be unlawful sex discrimination);

(c) The failure to consult the claimant about the Material Manager role (which took place before she was notified about this on 25 April 2022).

[195]The respondent did not calculate this conduct to destroy or seriously damage the relationship of trust and confidence between the respondent and the claimant. This is not a case where there was a deliberate attempt to drive out the claimant. However, it was sufficiently grave to be likely to have that effect. Furthermore, it did have that effect. The delay and the failure to consult were not sufficiently serious failings (either individually or taken together). These two failings did not amount to a breach of the implied duty of trust and confidence. However, the unlawful discrimination was serious and is, in itself, conduct that meets the necessary threshold. The respondents’ conduct breached the duty of trust and confidence in this respect. Did the Respondent’s treatment of the Claimant on her return-to-work amount to a “final straw”?

[196]The evidence as to the precise reason for the claimant’s resignation and what event(s) represented the “final straw” for her is contradictory. For example:(a) The reasons for the claimant’s resignation are set out in her resignation letter dated 6 June 2022. They include the matters in paragraphs 194(a) and (b) above. They also include other matters which either occurred after the claimant’s return from maternity leave or which were discovered by the claimant after her return;

(b) The claimant said in evidence in response to the Judge’s questions that she intended to leave after the refusal of her flexible working request;

(c) The event occurring immediately before the claimant’s resignation was the refusal to uphold her grievance on 27 May 2022. However, no mention of this is made in the claimant’s resignation letter and the claimant did not point to this as the final straw when giving evidence.

[197]On balance, we find that it was the refusal of the claimant’s flexible working request that was the final straw for the claimant. This was the claimant’s evidence to us. It was this event which soured the employment relationship irretrievably. The claimant attempted to return to work after this but could not let that refusal go. The employment relationship was so damaged by this point that the respondent could “do no right” in the claimant’s eyes. Nothing that they did would be accepted by the claimant. Were any such breaches sufficiently serious to constitute a repudiatory breach? 198. We refer to paragraph 195 above. Did the Claimant, by her conduct, waive any such breach?

[199]The claimant affirmed the respondent’s breach and thereby lost the right to treat herself as constructively dismissed. The breach of the implied term occurred in April 2022 while the claimant was away on maternity leave. She did not resign at that point. She not only delayed but accepted the changed working hours. She returned to work from maternity leave on 11 May 2022 and continued working until resigning on 6 June. Her conduct and delay amount to an affirmation of the respondent’s breach.

[200]For the reasons set out above, the claimant has failed to demonstrate that the respondent constructively dismissed her. She resigned. She was not constructively dismissed. The complaint of unfair dismissal is not successful. In the alternative, was the dismissal for “some other substantial reason” as per s.98(4) ERA?

[201]We do not need to determine this issue. There was no constructive dismissal and so the reason for dismissal and the fairness of the dismissal do not need to be considered. Approved by: