Ms F Dolcy v Beautiful Body Company UK Limited — 2021

Ms F Dolcy was employed by Beautiful Body Company UK Ltd and became Front of House Manager in 2017. She became pregnant in 2018, went on maternity leave on 1 February 2019, and the tribunal accepted that during pregnancy Ms Hewitt criticised her clothing and make-up when she could not comply with the usual dress code. It also found that Ms Hewitt ignored and excluded her, dealt directly with Ms Chaves, and that no action was taken on the claimant's 12 January 2019 grievance.

The tribunal upheld the pregnancy and maternity discrimination claim in relation to those matters. It also upheld the complaints that the respondent failed to review the claimant's salary or award a pay rise while she was on maternity leave and appointed Ms De Leon to the claimant's role in September 2019. It rejected the allegation that Ms Chaves had been promoted to take over the claimant's role, and dismissed the remaining s.18 complaints.

On indirect sex discrimination, the respondent accepted that it applied PCPs that the Front of House Manager role could only be done full time and could not be done part time on a temporary basis. The tribunal found those PCPs put women at a particular disadvantage, put the claimant at that disadvantage because she needed a temporary part-time arrangement as a new mother, and were not justified. The respondent's cost evidence was vague, and the tribunal found that less discriminatory options, including a temporary job-share or other cover, had not been properly explored.

On dismissal, the tribunal held that the 6 February 2020 appeal outcome amounted to an express dismissal, but found that the respondent retracted it on 10 February 2020 and that the claimant accepted that retraction by conduct. It nevertheless found that the claimant was constructively dismissed on 11 March 2020 when the respondent refused to engage fairly with her request to return temporarily in her existing role, offered instead a permanent part-time senior receptionist role, and maintained that she had to accept one of its options. The tribunal held that the respondent showed no potentially fair reason under s.98(4) ERA 1996, so the unfair dismissal claim was upheld.

The victimisation claim failed because the tribunal did not find that the 28 January 2020 grievance materially caused the appeal refusal, demotion offer, rota or dismissal. The flexible working complaint under s.80H ERA 1996 also failed because the formal request sought alternative part-time roles rather than a variation of the existing Front of House Manager job, so the alleged incorrect facts were not the basis of the refusal. The race discrimination claim was withdrawn, and the respondent conceded unpaid holiday pay for 1.5 days. The tribunal treated the discrimination complaints as in time as conduct extending over a period and said that, alternatively, time would have been extended as just and equitable. A further remedy hearing was listed, so no final award was quantified in this judgment.