In person For the v Respondent — 2022

The claimant, Mrs Carly Bunker, was employed by London Underground Limited and, during maternity leave, applied on 31 January 2019 for flexible working so that she could work two late shifts per week rather than continuing in a night-time role. Her request was discussed with Mr Carpenter, rejected on 15 March 2019, appealed to Mr Gardner and refused on 20 May 2019. The claimant then raised grievances about the handling of the request and alleged indirect sex discrimination.

The tribunal held that the claimant had made a valid application under section 80F ERA 1996. Although the revised application form no longer asked whether the request was made under the statutory right, the tribunal found that the form formed part of the respondent's flexible working policy, that the policy referred to the statutory right, and that the claimant was entitled to rely on that structure. The respondent's late argument that the request was not a statutory application was not pleaded in the response, although the tribunal dealt with it because it appeared in the list of issues.

On section 80G ERA 1996, the tribunal found that the request was not dealt with in a reasonable manner. It concluded that Mr Carpenter focused only on whether there was a gap in the roster, did not properly explore whether the request could be accommodated elsewhere, and failed to follow up an email from Mr Casey at Oxford Circus indicating that Leicester Square could potentially accommodate extra late turn staff. The tribunal found that Mr Carpenter told the claimant that all area managers had said they could not accommodate her request when that was not true, and that the email from Mr Casey was withheld from the claimant, Mr Gardner, and later grievance officers. It also found that Mr Gardner repeated the same narrow reasoning on appeal, misunderstood the Special Requirements Team work, and was working on incorrect facts.

The tribunal further found that the decision on the appeal was not notified within the decision period as extended by agreement, and that the refusal was not based on a proper section 80G(1)(b) reason but on a limited view that there was no space in the roster. No monetary remedy was recorded in this liability judgment.

On indirect discrimination, the tribunal accepted that the respondent applied a PCP of turning down flexible working requests by Operational Staff for spurious reasons. It held that women were particularly disadvantaged because they tend to have more childcare responsibilities, that the claimant was disadvantaged, and that the respondent had not shown the PCP to be a proportionate means of achieving a legitimate aim. The tribunal referred to the absence of evidence on cost, reorganisation of work, recruitment, and insufficiency of work, and to the guidance in Dobson v North Cumbria Integrated Care NHS Trust on judicial notice of childcare responsibilities.