Can an act of indirect discrimination be ‘cured’ by an internal appeal?
The nature and details of internal appeals are normally considered in the context of unfair dismissal claims. Internal procedures followed by the employer can be of critical importance. An improper appeal process can taint an otherwise fair dismissal. Conversely, a properly conducted appeal (particularly by way of re-hearing) may render an otherwise unfair dismissal fair.
However, the nature and detail of appeal processes rarely seem to arise in relation to discrimination cases.
They have now. In Little v Richmond Pharmacology Ltd, the Employment Appeal Tribunal (EAT) was asked to consider whether a successful internal appeal could ‘cure’ an initial decision to refuse an employee’s flexible working application that was indirectly discriminatory because of sex. It decided that it could. This case is notable because it appears to be the first that considers the effect of internal appeals on indirect sex discrimination claims…
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This decision represents a welcome return to the ‘pay for what you use’ principle and strikes a fairer balance between different creditor and expense groups.
Winckworth Sherwood has provided a summary of the Trusts (Capital and Income) Act 2013.