'Curing' indirect discrimination through internal appeal

Thanks to Ed McFarlane of Deminos HR for preparing this case summary

Can an act of indirect discrimination be 'cured' by an internal appeal? Yes, holds the EAT in Little v Richmond Pharmacology Ltd on the particular facts of that case.

The Claimant's initial request for part-time working on return from maternity leave was declined but, on appeal, she was offered part-time working on a trial period as she had requested. The Claimant had, in the meantime, resigned and pursued her appeal against the refusal of flexible working.

The Claimant brought complaints out of time for constructive unfair dismissal and indirect discrimination for a detriment arising from the refusal of flexible working. Time was only extended for the indirect discrimination complaint.

An employment tribunal rejected the complaint of indirect sex discrimination as the successful appeal had 'cured' the initial detriment. The EAT upheld the employment tribunal's decision, noting that the appeal had concluded before the Claimant's projected return to work, and she was not put at a personal disadvantage. Drawing on the experience of its lay members, the EAT noted that the refusal of part-time working was, in this case, conditional on the right of appeal.

The EAT noted that a dismissal as a detriment arising from indirect discrimination was not relied upon by the Claimant, so the principle established may have practical application limited to similar facts.