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Buckland & Cast Revisited: Littleton Win in EAT

Can a successful internal appeal cure an earlier act of prima facie unlawful sex discrimination?

The judgment handed down this morning by the Employment Appeal Tribunal [HHJ Peter Clark, Professor Mohanty and Mr Stanworth] in Little v Richmond Pharmacology Ltd UKEAT/0490/12/LA upholds an employer’s ability to cure an earlier act of prima facie unlawful sex discrimination, albeit under the legislation that preceded the Equality Act 2010.

The Claimant relied upon an initial refusal of her request to be permitted to work on a part-time basis upon her return from maternity leave as constituting discrimination against her contrary to the Sex Discrimination Act 1975. Perhaps surprisingly, she did so even though that refusal had been overturned by her manager upon appeal. The appeal outcome had given her what she had initially asked for. However she declined to withdraw her resignation and brought proceedings against her employer. She lost her claim at first instance [where Charlene Hawkins successfully represented the Respondent] and appealed.

In the EAT the Claimant relied on two well-known authorities that she contended were in her favour. These were: (i) Bournemouth University v Buckland [2010] IRLR where in the context of a claim of constructive dismissal, the Court of Appeal refused to allow an employer to cure a fundamental breach of the implied term of trust and confidence by upholding a grievance; and (ii) Cast v Croydon College [1998] ICR 50 in which the Court of Appeal had taken as its starting date for a continuous act of discrimination the first date on which a request for flexible working had been refused. Before the EAT, Jason Galbraith-Marten and Sheryn Omeri of Cloisters, argued on behalf of the Claimant that in Cast the CA had held that the statutory tort of discrimination had been completed on this first date.

In dismissing the appeal, the EAT accepted the submissions of Chris Quinn [whom the Respondent’s solicitors, Edwin Coe, brought in to lead Charlene]  as to why neither authority should be applied under the 1975 Act to the facts of this case.

Although the overall outcome may be thought to be consistent with both common-sense and good industrial- sense (giving as it does the opportunity to employers to correct errors before matters need escalate further), it is important to note two crucial limitations to it. Firstly, the case deals with the situation under an Act that has now been replaced. Secondly, the judgment may prove to be fact-specific. In particular it is to be noted that as the Claimant remained on maternity leave during the short period before the prima facie discriminatory act was cured on appeal the EAT was not satisfied that that act had been “applied” to her as required for there to be a contravention of the Act.

However, in respect of both limitations there is enough in the EAT’s Judgment to suggest that it may well have been inclined towards the same outcome even under the 2010 Act or had the Claimant been at work at the relevant time.  In this regard it is to be noted that the EAT does appear to have inclined towards the view that an employer should be given the chance to correct its mistakes. Not only does it refer in its judgment to the so-called “vanishing dismissal” cases but in paragraph 34 it stresses that “it is the experience of the industrial members sitting on this appeal that an internal appeal process, consensually pursued, forms part and parcel of the employer’s decision-making process.” 

A link to the judgment can be found here.

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