Shaw v CCL Ltd
By law, employers have to seriously consider a request for part-time working from someone returning from maternity leave. In Shaw v CCL Ltd (2008, IRLR 284) the Employment Appeal Tribunal (EAT) said that the employer’s failure to do so amounted to sex discrimination and constructive unfair dismissal.
Basic facts
In November 2004, while on a period of maternity leave, Mrs Shaw asked if she could return to work two days per week. She was flexible as to which those days were and that they could be made up of full days or part days. However, she explained that she did not want to be more than 100 miles away from home at any time and did not want to do overnight stays.
She was then asked by the company to complete and submit a standard application form under section 80F of the Employment Rights Act 1996. She did so but, after some delay, her request was refused. She appealed against the company’s refusal. On 4 April 2005 her period of maternity leave ended, having been told of her unsuccessful appeal just three days earlier. On 5 April 2005 she resigned.
She claimed direct and indirect sex discrimination on a number of grounds as well as constructive unfair dismissal.
Tribunal decision
The tribunal agreed with Mrs Shaw’s claim of direct sex discrimination in that CCL had refused to allow her to work on a part-time basis. It also agreed that she was the victim of indirect sex discrimination when the company imposed a requirement on her to work full time after her maternity leave which it could not objectively justify.
However, it did not agree that she had been constructively unfairly dismissed as a result of this discriminatory conduct. Instead it said that she had resigned because the company had refused her application for flexible working. As CCL was not obliged to accept her request, their refusal could not represent a fundamental breach of her employment contract.
Mrs Shaw appealed, arguing that the acts of discrimination identified by the tribunal represented a breach of the implied contractual term of trust and confidence, entitling her to resign and claim constructive dismissal.
EAT decision
And the EAT agreed. It criticized the tribunal for treating Mrs Shaw’s request for flexible working as though it was a separate issue from her request to work part-time. It said that, in reality, they were part of the same application. The fact that she had to fill in a standard government flexible working form to make the request to work part-time was irrelevant.
As the tribunal had found that the company’s refusal of part-time working was discriminatory, the question now was whether Mrs Shaw left in response to that decision and was it enough to indicate an intention by CCL that it no longer intended to be bound by the implied terms of trust and confidence in her contract.
The EAT decided there was no doubt that Mrs Shaw had resigned in response to CCL’s rejection of her request for flexible working which, by definition, was a rejection of her claim to work part-time.
But was she constructively dismissed? The EAT concluded that the company had rejected Mrs Shaw’s request either because she was a woman (direct discrimination), or because it had applied a condition which adversely impacted upon women (indirect discrimination). Either way, it amounted to a fundamental breach of her contract. As she resigned promptly in response to the rejection of her application, her claim of constructive unfair dismissal could succeed.
The EAT therefore overturned the tribunal’s decision and held that the company’s direct and indirect sex discrimination led to a fundamental breach of her contract entitling her to resign and claim constructive unfair dismissal.