Mr Zaidi (claimant’s husband) For the v Respondent — 2024

The claimant worked for the first respondent as a customer services agent from 1 February 2016 until she resigned with immediate effect on 4 December 2021. The tribunal held that her flexible working request of 13 August 2021 was not a statutory request because it did not explain the effect on the employer, and her request of 1 November 2021 was not statutory because it did not state when any previous application had been made. The separate complaint under section 4 ERA 1996 about a failure to provide a written statement of change also failed, because the tribunal found the August 2021 shift-pattern change was handled informally within the existing contract and did not require a statutory written statement.

The indirect sex discrimination complaint succeeded against the first respondent. The tribunal found that the respondent applied a PCP requiring workers to be available potentially every day and at any time, accepted judicial notice of the childcare disparity, and held that women were put at a particular disadvantage. It accepted the respondent's aim of meeting airline passenger demand and service level agreements, but concluded the PCP was not proportionate because a less discriminatory fixed-day arrangement, including a job-share style solution or recruitment of another worker, had not been properly explored. The complaints against the individual respondents were dismissed.

The complaint under section 47C ERA 1996 also succeeded against the first respondent. The tribunal found that the claimant took qualifying time off for dependants on 2 April, 6 August, 16 September and 16 November 2021, but not on 13 April 2021, which it treated as time off taken at the employer's request after the claimant could not work the rostered shift. It held that the one-day absences were reasonable, that the claimant gave notice as soon as reasonably practicable on 16 November, and that the investigation and disciplinary steps taken between 17 and 25 November 2021 were detriments caused by, or materially influenced by, the statutory leave. The complaint against the second respondent was dismissed because section 47C applies only to employers.

On dismissal, the tribunal held that the claimant was constructively dismissed because the cumulative handling of the August and November 2021 flexible working requests, the failure to confirm the August arrangement in writing, and the dependants' leave investigation breached the implied term of trust and confidence. It then held that the automatic unfair dismissal complaint under section 104 ERA 1996 failed, because the principal reason for dismissal was the refusal of a permanent flexible working arrangement rather than the claimant's assertion of her section 57A right. The ordinary unfair dismissal complaint under sections 94 and 98 ERA 1996 succeeded because the respondent did not establish a fair reason for dismissal. Remedy was not determined in this judgment; a separate remedy hearing was listed.