Ms L Hedger v British Deaf Association — 2022

Ms L Hedger, a deaf employee of the British Deaf Association, returned from maternity leave seeking to reduce her Heritage Project Manager hours from 28 hours over four days to 16 hours over two days, later offering 24 hours over three days. The tribunal treated the 1 February 2019 grievance and the later grievance appeal as part of the flexible-working process, relying on Commotion v Rutty and Walsh v Network Rail Infrastructure Ltd. It held the flexible-working claim was in time because the 27 March 2019 appeal outcome was the relevant decision; alternatively, time would be extended if necessary.

On the flexible-working complaint, the tribunal found the 19 December 2018 refusal, the 21 February 2019 grievance outcome and the 27 March 2019 appeal outcome were all affected by incorrect facts. Those included an overstated commute time of about 7 hours a day instead of about 4.5, and the respondent's treatment of the request as one for 14 hours rather than 16. It found the respondent did not properly address the claimant's points or the 16-hour proposal, and it awarded £2,032 for the flexible-working breach.

On indirect sex discrimination, the tribunal held that the relevant PCP was a requirement for the Heritage Project Manager role to work at least 28 hours per week and at least four days per week. Applying s.19 and s.136 Equality Act 2010, and taking judicial notice of childcare disparity, it found women were at a particular disadvantage and that the claimant was personally disadvantaged because affordable childcare made four-day working difficult. It held the claim was in time on a continuing-act basis or, alternatively, extended time because it was only 12 days late and the respondent was not prejudiced. The tribunal rejected the respondent's funding-based justification as not made out and not proportionate, noting among other things that the respondent had core funding and did not adequately explore alternatives involving Justin Smith's maternity cover.

The direct sex discrimination claim was dismissed. The tribunal found no facts from which it could infer that the refusal of flexible working or the eventual dismissal was because of sex, and held that Justin Smith was not an appropriate comparator because he wanted to continue working five days a week rather than reduced hours.

On constructive unfair dismissal, the tribunal found that the refusal of the flexible-working request, coupled with the way the grievance and appeal handled the claimant's points, amounted to a breach of the implied term of trust and confidence without reasonable and proper cause. The claimant resigned on 31 March 2019 after pursuing the internal process, did not affirm the contract, and was constructively dismissed; the dismissal was held to be unfair. Remedy was assessed on the basis that she would have returned on 4 February 2019 and worked two days a week until 12 September 2020. The tribunal awarded a basic award of £2,540, financial loss and pension loss of £17,678.70, injury to feelings of £11,000, and interest of £6,019.91, giving a total award of £39,270.61.