Ms Isobel Bayliss of Counsel For the v Mr Zain Malik - Solicitor — 2022

The tribunal first dismissed the flexible working complaint under section 80H ERA 1996 because none of the claimant's letters of 17 September, 3 October, or 25 November 2019 stated that they were applications under section 80F(2). Although that statutory claim failed, the tribunal found that the respondent had treated the letters as flexible working requests under its own policy and the ACAS Code, and that its response to them was relevant to the discrimination and dismissal claims.

On the maternity and pregnancy claims, the tribunal found that the respondent did not adequately engage with the claimant about returning to work after maternity leave. It rejected her proposals without a meeting, mischaracterised her requests as only requests for part-time work, and did not give any real consideration to her proposals for full-time work with homeworking, or to the vacant receptionist/administrator role in October 2019. The tribunal inferred that stereotypical assumptions were made that a woman returning from maternity leave would only want part-time work, and held that the claimant was treated unfavourably because she had been on maternity leave and had given birth. The alternative direct sex discrimination complaint was said to fall away once the pregnancy/maternity discrimination claim succeeded.

The tribunal also upheld the detriment complaint under section 47C ERA 1996 and Regulation 19, and the indirect sex discrimination claim under section 19 Equality Act 2010. It accepted that the respondent applied PCPs requiring the sales manager and receptionist/administrator roles to be full-time and office-based, that women were at a particular disadvantage because they are more likely to have childcare responsibilities, and that the claimant herself was disadvantaged by those PCPs. The respondent's aims of departmental operation and meeting customer demand were accepted as legitimate, but the tribunal held that the respondent had not shown the PCPs to be a proportionate means of achieving those aims because it did not seriously consider the claimant's proposals, including remote working, job sharing, or partial accommodation of the receptionist/administrator role.

On dismissal, the tribunal held that the claimant resigned in response to a fundamental breach of contract and was constructively dismissed. The breach consisted of the respondent's failure to follow its own flexible working policy, its lack of meaningful investigation, and the mishandling of the grievance and final request dated 25 November 2019. The dismissal was held to be an act of unlawful pregnancy/maternity discrimination and automatically unfair under section 99 ERA 1996 and Regulation 20 of the 1999 Regulations, with ordinary unfair dismissal upheld in the alternative. Remedy was not determined in this liability judgment; the tribunal directed a separate remedy hearing for 8 April 2022.