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Effect of successful appeal on an earlier act of discrimination

Posted by TonyBrownEmploymentSolicitor on September 26, 2013

What is the effect of a successful appeal on an earlier act of indirect sex discrimination? On the facts of the next case, the effect was to prevent the claimant from relying on the earlier act as an act of sex discrimination.

In that case, the Claimant asked to return to work part time at the end of her maternity leave but her request was (unlawfully) refused on the grounds that it was not feasible for sales executives to work part time. She appealed, but before the appeal was heard, she resigned. She was asked to reconsider her resignation until the appeal hearing had taken place. She attended the hearing and the decision was reversed, allowing her to work part time for as she had requested. The Claimant did not take up the offer and instead said that her resignation still stood.

The Claimant brought a tribunal claim for indirect sex discrimination. The Claimant’s case was that she was subjected to discrimination when the employer refused her application to work part-time.

Her claim fell to be decided under the provisions of the Sex Discrimination Act 1975. Under that Act, an (employer) indirectly discriminates against a woman (employee) if he applies to her a ‘provision, criterion or practice’ (PCP) which he applies or would apply to a man but (i) which puts or would put women at a particular disadvantage when compared with men (disparate impact) and (ii) puts that employee at a disadvantage (personal disadvantage) and (iii) which (the employer) cannot show to be a proportionate means of achieving a legitimate aim (justification).

Her claim was dismissed by the ET which said that the Claimant had not suffered a disadvantage as a result of the PCP that sales executives work full time because the employer had agreed (on appeal) that the Claimant could work part time as she had requested

On appeal to the EAT, the Claimant argued that there was a completed act of indirect sex discrimination when the employer refused her request for part time working and it could not be "cured" by a successful subsequent appeal.

The EAT rejected this argument because, on the facts of this case, the employer’s decision to reject the Claimant's request for part-time working on her return in the future was expressed to be subject to the Claimant's right of appeal. To that extent the employer’s decision was conditional. The Claimant succeeded on appeal. The PCP of full-time working was not going to be applied to her when she completed her maternity leave. She did not suffer a disadvantage.

Comment

If followed in future cases, this ruling of the EAT will be welcomed by employers who use their appeal process to reverse poor decisions. The EAT derived some support for its analysis from the concept of a ‘vanishing dismissal’ in unfair dismissal law where a decision to dismiss at a disciplinary hearing is cancelled if some lesser sanction is imposed on appeal.

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to tony@bathemploymentlaw.co.uk

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