‘Cured’ by successful internal appeal

24 October 2013

Elizabeth Lang, Stephen Musgrave

In Little v Richmond Pharmacology, the Employment Appeal Tribunal considered the case of a female employee whose request to work part-time on her return from maternity leave was rejected.

She appealed this decision, but then resigned before her appeal could be heard. Subsequently, her appeal was heard and she was successful. Could she still claim indirect sex discrimination? The EAT said that she could not. An internal appeal process which is consensually pursued forms part and parcel of the employer’s decision-making process. The claimant could not allege that she had been subjected to any disadvantage or detriment until that process had reached its conclusion. This is similar to the concept in unfair dismissal cases of a ‘vanishing dismissal’; where a claimant is dismissed for misconduct, appeals the decision internally AND files an unfair dismissal claim, if the appeal is upheld and the sanction of dismissal is set aside, there is no claim for the claimant to pursue.

Points to note:

  • It would have been different if this had been a claim for constructive dismissal; a breach of trust and confidence by the employer cannot be "cured" by a successful internal appeal according to the Court of Appeal. Once a repudiatory breach of contract has occurred, it cannot be undone by an internal process, without the employee’s agreement.

  • The fact that the employee was still on maternity leave and had not returned to work was crucial. As with all discrimination cases, this decision was based on specific facts, and the EAT emphasized this. Therefore, a similar case with slightly differing facts may be decided otherwise, depending on the timing of a successful internal appeal decision in relation to the employee's return to work date.

This article is part of the UK Employment Law Update for October 2013

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