Employment Update SexDis-ConDis 0108

16 January 2008

Refusal of a flexible working request may entitle an employee to resign and claim constructive dismissal

In the recent case of Shaw v CCL Ltd the employee worked full-time 5 days a week, including an extensive amount of travelling. While on maternity leave she asked if, on her return, she could work a 2 day week and not travel more than 100 miles from her home in Leicester. Her request was flatly rejected without any discussion at all. At the end of her maternity leave she resigned and then claimed sex discrimination and constructive dismissal.

At Tribunal her sex discrimination claim succeeded but her claim for unfair constructive dismissal failed. The Tribunal held that, although it was undoubtedly an act of sex discrimination, it was not a repudiatory breach of the implied term of trust and confidence for the employer to have turned down her flexible working request as it did.

She has now succeeded on appeal to the EAT. Her flexible working request had to be considered as a wish to work part-time and, in this case, the high-handed way in which the request was dealt with (as well as being an act of unlawful sex discrimination) did amount to a repudiatory breach justifying the employee in resigning. She was entitled to succeed in her additional claim for constructive dismissal.

Points to note:

  • On the sex discrimination issue, the EAT said that the Employment Tribunal in Shaw were mistaken to consider the employee’s flexible working request and her wish to work part-time as two separate issues. In the EAT’s view there was a part-time working claim ‘embedded’ in the flexible working request. So, even though an employer has the right to reject a flexible working request, it must take care that, in doing so, it does not expose itself to an unlawful discrimination claim.

  • On the constructive dismissal issue, Ms Shaw’s representative tried to argue that any breach of discrimination legislation by an employer as against an employee would amount to a repudiatory breach of the implied term of trust and confidence in that employee's contract. The EAT did not think it needed to go that far to find in Ms Shaw’s favour, because in her case, the employer’s behaviour had been so high-handed. However, employers should appreciate that they run the risk of two separate claims if an employee resigns following an act of unlawful discrimination on the employer’s part.

Employment Group