Shaw v CCL Ltd EAT/0512/06

part-time working | sex discrimination | constructive dismissal

The Employment Appeal Tribunal (EAT) has held that, in the circumstances of the case, when an employer's failure to consider a request to work part time amounted to direct and indirect sex discrimination, this also amounted to an unfair constructive dismissal.

Mrs Shaw was an area sales executive with CCL Ltd. She began maternity leave on 2 April 2004. She made a request, first by email on 29 November 2004, and then on the standard flexible working application form, to return to work two days a week, to work no more than 100 miles from home and not to have to stay away overnight. Her request was refused on 15 February 2005. She acknowledged this refusal on 1 March 2005. Her maternity leave ended on 4 April 2005 and she resigned on 5 April 2005.

Among other findings, the employment tribunal found that the failure to allow Mrs Shaw to return to work on a part-time basis amounted to direct and indirect sex discrimination. However, it rejected her claim of unfair constructive dismissal. Mrs Shaw's resignation was not due to any breach of her employment contract, but was because CCL had refused her request for flexible working.

The EAT upheld Mrs Shaw's appeal against the tribunal finding on constructive dismissal. It held that the tribunal had treated Mrs Shaw's request for flexible working and her wish to work part time as separate issues. However, they were not - they were part of the same request. CCL should have dealt with her request and its response had been found to be discriminatory. It was clear that Mrs Shaw had resigned as a result of CCL's response to her request for flexible working and this included a request to work part time. By directly and indirectly discriminating against Mrs Shaw, CCL had failed to carry out the duty to maintain trust and confidence. She had resigned promptly. There was, therefore, a constructive dismissal.

Case transcript of Shaw v CCL Ltd (Microsoft Word format, 57.5K) on the EAT website

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