Tribunal Member: Ms L Grime Tribunal Member: A Matheson Miss Raegan Drew v D Milne Advocate The Co-operative Group Limited — 2023

The claimant, a funeral director for the respondent, had on-call payments that stopped after May 2021 when she ceased on-call duties because of her pregnancy. The tribunal held that the loss of the on-call allowance was unfavourable treatment because of pregnancy under section 18 of the Equality Act 2010. It accepted that the claim, although out of time on the ordinary limitation period, was brought within such time as was just and equitable. No declaration or compensation was ordered because the tribunal found no proven loss and no injury to feelings.

The section 47C Employment Rights Act 1996 detriment claim was withdrawn during the hearing and dismissed under Rule 52. The tribunal also rejected the claimant's flexible working claim under sections 80F and 80G of the Employment Rights Act 1996. It found that the request made on 25 July 2022 was a compliant statutory request and that the respondent dealt with it in a reasonable manner, having considered it across meetings, given reasons for refusal, and allowed an appeal.

The indirect discrimination claim under section 19 of the Equality Act 2010 failed. The tribunal did not accept the PCP formulations advanced by the parties as proved on the evidence, and it held that the respondent was not operating a practice requiring funeral directors, nationwide or in Edinburgh, to work full time in the way alleged. It also found no evidential basis for saying that women generally were disadvantaged by the alleged PCP or that the claimant herself was put at that disadvantage.

The unfair constructive dismissal claim was dismissed. Applying the implied term of trust and confidence and the constructive dismissal authorities it cited, the tribunal held that the respondent's rejection of the flexible working proposal and its later consideration of a part-time funeral director role were not conduct calculated or likely to destroy the employment relationship. It also found that the cessation of on-call payments could not have been a cause of the resignation, because the claimant only learned of that issue after she had resigned on 24 October 2022.