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Following a development in case law last year, that arose as a result of an employee successfully following an internal appeal process, I though it useful useful to remind ourselves of the potential impact of of internal appeals.

In the constructive unfair dismissal (i.e. the employee quit) Bournemouth University v Buckland [2010] IRLR 445  the Court of Appeal had to consider whether a repudiatory breach of trust and confidence could be “cured” by a successful internal appeal, before the breach was accepted by the employee. It held that it could not; once a repudiatory breach had occurred, it could not be undone by an internal process prior to acceptance of the breach by the employee. However, in such circumstances, the employer could invite the employee to affirm the contract.

In West Midlands Co-operative Society Ltd v Tipton [1986] ICR 192 the House of Lords made clear that in determining the fairness of a dismissal, the tribunal should take into account the employer’s approach to internal appeal procedures and in this case the employer’s failure to allow an appeal (particularly in breach of its own internal procedures) rendered the dismissal unfair. 

In Taylor v OCS Group Limited, the Court of Appeal has held that it is not necessary to decide if an appeal hearing is a “review” or a “rehearing” to determine whether a procedural defect in an earlier disciplinary hearing can be remedied. What is important is that the procedure was fair overall. Also, where a disabled employee has been unfairly dismissed, for a combination of reasons (including their disability), there will be no disability discrimination provided that the employer did not have the disability-related reason in its mind at the time of the dismissal.

Now to the more recent case of Little v Richmond Pharmacology Ltd UKEAT/0490/12, in which the EAT considered whether an ET was correct to find that an employee had not suffered indirect sex discrimination when her flexible working application, which was initially refused, was subsequently accepted on appeal before her return to work from maternity leave.The EAT held that the tribunal had been correct to conclude that Ms Little had not suffered a disadvantage or detriment because on appeal, her part-time working request had been granted. In effect, Ms Little’s appeal rendered the original decision refusing her part-time working request void meaning that she did not suffer any disadvantage or detriment, as the PCP (to work full-time) would not be applied to her until she had completed her maternity leave.

Comment

As with all discrimination cases, this decision was fact-specific therefore, a similar case with differing facts may be unsuccessful.  Reasonableness remains “one of the tools in the employment tribunal’s factual analysis kit.” Cases are likely to arise in which reasonableness is to be balanced against a legal requirement. For example, an employer may withhold wages from an employee because a creditor has not paid their bill.  Such action might be reasonable but it will be wrong in law.  So what can employers do? Mitigate any potential harm or loss that might be suffered (that translates to don’t delay the process and certainly compensate for any loss).

Quick check on indirect sex discrimination

Since the decision in London Underground v Edwards (No 2) [1998] IRLR 364, women whose requests for flexible working are rejected may bring a sex discrimination claim the s11 and s19 Equality Act 2010 (EqA 2010).

Indirect sex discrimination occurs where:

  • A applies to B a provision, criterion or practice (PCP).
  • A applies (or would apply) that PCP to persons not of the same sex as B.
  • The PCP puts or would put persons of B’s sex at a particular disadvantage.
  • The PCP puts or would put B at that disadvantage.
  • A cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.
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