EAT Maternity Rights and Parental Leave – SEX DISCRIMINATION – Indirect
UNFAIR DISMISSAL – Constructive dismissal
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
JURISDICTIONAL POINTS – Extension of time: just and equitable
ET rejected claims of maternity discrimination, indirect sex discrimination and constructive dismissal. The Claimant had complained that before she went on maternity leave she had agreed a 1 year flexible working arrangement, for 4 days per week, after which she would revert to her previous FT contract. Another employee, AH was required to work on the fifth weekday, on a fixed term contract of 1 year duration. The Claimant took a second period of maternity leave during which AH was dismissed at the end of her fixed term. The Claimant claimed that to dismiss AH without first telling the Claimant, and to fail to discuss with the Claimant at the end of her agreed period of 4-day working what her plans were for the hours she would work on return after leave, amounted to unfavourable treatment because of her exercising her right to maternity leave. This was rejected both on the merits and for time reasons, since an application was not made until some 8 months after the failures (and, in the case of AH, over 3 months after the Claimant knew of AH’s dismissal).
The ET had stated the PCP contended for in one paragraph of its decision, but a different one when it analysed the facts and concluded no such PCP had been applied. In dealing with constructive dismissal it said the ‘last straw’ had been unidentified, when in fact it was clearly identified.
Held: dismissing the appeal, that the ET was entitled to decide as it did on the claim of maternity discrimination; that the inconsistency of the PCP was not material since the two PCPs considered were in context the same, though expressed differently as a matter of linguistics; and that although the ET had erred factually in its approach to constructive dismissal its conclusion on the facts was nonetheless plainly and obviously right.
Observations made about the procedure to be adopted where the parties find it difficult to agree bundles for use at the EAT.
Langstaff J P
[2014] UKEAT 0391 – 13 – 0204
Bailii
England and Wales
Employment
Updated: 16 December 2021; Ref: scu.534232