In person For the v Respondent — 2022

The claimant had worked for New Look for about 20 years and returned from maternity leave on 17 May 2021 after her fourth maternity leave. Her Oxford Street/Tottenham Court Road store was closing, and the consultation process focused on whether there was suitable alternative work for her given her stated availability and the respondent's flexible-working requirements.

The tribunal rejected the direct maternity discrimination claim and the direct sex discrimination claim. It found that the respondent's position that the claimant could not make a formal flexible working request until she had secured a substantive role was a detriment, but the reason for that treatment was redundancy and the respondent's policy for considering requests at store level, not maternity leave or sex. On the White City correspondence, the tribunal accepted that the letters and messages could reasonably have looked like an offer of a substantive role, but found that the respondent intended this only as an administrative arrangement to keep the claimant on the books while her store had closed.

The tribunal upheld indirect sex discrimination under s.19 Equality Act 2010. It identified the PCP as requiring workers in the redundancy process to be willing to work flexibly and available most days of the week. On the respondent's own figures, 10 of 69 female employees at risk of redundancy and 2 of 18 male employees were unable to secure alternative employment because they could not comply with that requirement, and the tribunal treated that difference as significant. It accepted the legitimate aim of operating stores and meeting staff-cover needs, but held the PCP was not justified because the respondent could operate with some fixed-shift workers and had not made specific enquiries of stores about whether they could accommodate the claimant's fixed days.

The unfair dismissal claim succeeded on ordinary unfairness grounds, although the tribunal did not find a breach of regulation 10 of the Maternity and Parental Leave etc Regulations 1999. It held that a reasonable employer should have checked with the stores the claimant was interested in whether they could accommodate her availability, and should have told her about the temporary White City vacancies. It did not consider that the respondent had to create new roles or carve up contracts, and it was not satisfied that the temporary White City posts were suitable alternative vacancies for regulation 10 purposes. The dismissal was therefore procedurally unfair, but the tribunal assessed a 30% chance that the claimant would have obtained or accepted alternative work anyway, leading to a 70% Polkey reduction.

On remedy, the tribunal awarded no basic award because the claimant had already received redundancy pay. The unfair dismissal compensatory award was £2,998.30, made up of £2,548.30 loss of earnings and £450 for loss of statutory rights. For discrimination, it awarded £5,673.83, comprising £136.84 interest on the loss of earnings element, £5,000 for injury to feelings, and £536.99 interest on that injury-to-feelings award. The total award was £8,672.13, and the tribunal also applied a 20% uplift because the respondent unreasonably failed to treat the claimant's 14 May 2021 complaint as a grievance.