Is it possible for an employer to ‘cure’ indirect sex discrimination by an internal appeal process?

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The Employment Appeal Tribunal (EAT) has held that an employee did not suffer indirect sex discrimination where, at an internal appeal stage, her employer reversed its earlier decision to reject her flexible working request. It was held that the employee had not suffered any detriment as the decision was made while the employee was still on maternity leave (Little v Richmond Pharmacology).

The claimant was employed by Richmond Pharmacology Ltd as a sales executive. She commenced a period of maternity leave in September 2009 and was due to return to work in August 2010. While on maternity leave, the claimant submitted a flexible working request, asking that she be able to return to work on a part-time basis. Richmond refused the request and the claimant appealed the decision. However, prior to an appeal hearing being arranged, the claimant resigned.

Richmond asked the claimant to reconsider her resignation and arranged an appeal hearing. The appeal hearing took place and the claimant’s request for part-time working was granted (subject to a trial period). Notwithstanding this decision, the claimant affirmed her resignation and pursued claims for constructive unfair dismissal and indirect sex discrimination against Richmond…

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