D v E
[2023] EAT 66
M Glover v Lacoste UK Ltd & Anor
2 February 2023
[2023] EAT 4
Employment Appeal Tribunal
A woman asked for flexible work after maternity leave. Her request was initially denied, then partially granted on appeal, then finally fully granted after she threatened to quit. A court ruled that the initial denial, even though later reversed, was still unfair because it forced her to consider quitting – the act of having to consider quitting is the problem, not the final result. The case will be retried to decide if this was sex discrimination.
Key Facts
- •Ms Glover, an assistant store manager, requested flexible working (3 days/week) after maternity leave.
- •Her request was initially rejected but partially upheld on appeal (4 days/week, fully flexible).
- •Following a letter before action, the employer fully acceded to her original request.
- •Ms Glover claimed indirect sex discrimination, arguing the requirement for fully flexible working was a PCP.
- •The employment tribunal found no PCP applied because the initial decision was overturned before she had to work under it.
- •Ms Glover appealed this decision to the EAT.
Legal Principles
Indirect discrimination under section 19 of the Equality Act 2010.
Equality Act 2010
Application of a PCP occurs when the application for flexible working is determined, not only when the employee works under the new arrangement.
Little v Richmond Pharmacology Ltd [2014] I.C.R. 85 (EAT)
Detriment is interpreted widely; the key test is whether a reasonable worker would or might consider the treatment detrimental.
Warburton v Chief Constable of Northamptonshire Police [2022] EAT 42
The application of a requirement that a woman could not comply with is detrimental even if not yet invoked or enforced.
Cast v Croydon College [1998] I.C.R. 500
Inclusion of a term in a contract of employment can result in the application of a PCP even if not invoked.
Meade-Hill and Another v British Council [1995] I.C.R. 847
Outcomes
The EAT allowed the appeal.
The employment tribunal erred in law by applying Little incorrectly. The PCP (fully flexible working) was applied upon the appeal decision, not only upon return to work under new terms. The matter was remitted for redetermination of whether a PCP was applied, whether disadvantage/detriment was suffered, and whether group disadvantage was established.
Remittal to a newly constituted employment tribunal.
The error of law was fundamental. All live issues (application of PCP, disadvantage/detriment, group disadvantage) require redetermination.
Second respondent (Mr Harmon) dismissed from the claim.
He did not make the appeal decision.