Mrs C. Daly v BA CityFlyer Ltd — 2020

Mrs C. Daly worked for BA Cityflyer as an In-flight Business Manager. On 15 June 2017 she applied for flexible working, seeking a 25% reduction in hours, set days off each week, flexibility around weekends and school holidays, and a six-month trial period. Ms O'Neill refused the request on 8 August 2017, relying on inability to reorganise work, detriment to quality, and detriment to performance; Mr Reid rejected the appeal on 4 September 2017. The tribunal found that the respondent was open to flexible working requests when they arose from medical circumstances, but resistant when they arose from childcare responsibilities.

The tribunal held that PCPs 1 and 2, namely the requirement to work full-time and the lack of fixed working days each week, put women at a particular disadvantage when compared with men, and put the claimant at that disadvantage because they made it impracticable for her to arrange affordable childcare around the respondent's variable shift pattern. The respondent's aims were accepted as legitimate, but justification failed: the managers did not properly analyse the request, did not make counter-proposals, did not consider a trial period or other alternatives, and relied on generalised concerns rather than evidence. The tribunal also relied on the later phased return scheme introduced from March 2018 and later additional administrative cover as undermining the case that full-time working was reasonably necessary. PCP 3, the requirement to fly operationally, was not shown to have put the claimant at a particular disadvantage.

The claimant resigned on 8 May 2018. The tribunal found that the discrimination contributed to her resignation, and said that if it had accepted jurisdiction it would have regarded the indirect discrimination as a breach of the implied term of trust and confidence, but it would still not have upheld the constructive dismissal claim because the contract had been affirmed between the appeal rejection in September 2017 and the resignation in May 2018. The constructive dismissal claim was dismissed because it was presented outside the statutory time limit under s.111 ERA 1996, and the late application to amend the first claim form to include the substance of the second was refused under the Selkent principles. Remedy was left to a separate hearing.