Legal Updates

Employment Law – Unfair Constructive Dismissal - Constructive Dismissal Test – Request for Part-Time Employment – Breach of Trust and Confidence - Maternity Leave

The case of Shaw v CCL Ltd [2008] concerned the test to be applied in assessing whether an employee has been constructively dismissed. The employee in this case commenced her employment on the 15th of April 2002, as an area sales executive and in 2003, she became pregnant. She subsequently began her maternity leave on the 2nd of April 2004.

Then, on the 29th of November, she submitted a request for flexible working. This request was submitted by e-mail. In her submission she stated that she wished to return to her employment, however, she was only willing to do so on a part-time basis. She stated the following conditions for her to return to work:

§   She wanted to work a maximum of two days per week, which amounted to 14 hours;

§   She would only return to work on the condition that she would not have to work more than 100 miles from her home town; and

§   She would not make overnight stays during the course of her work.

In response to these requests, the employer:

§   Provided her with a flexible working application form;

§   Asked her to describe her existing working pattern; and

§   Asked her to describe the future working pattern she wanted.

She completed that form in terms which were consistent with her e-mail. Then, on the 15th of February 2005, she received notice that her request was refused. The refusal was made by a director of the employer company.

It was stated that the refusal was partly made due to perceived staffing difficulties which would have been created by the terms of the employee's proposal. Her period of maternity leave ended on the 4th of April. On the 5th of April she resigned.

As for the reason for her resignation, she stated that she considered the refusal of her flexible working application to have been unreasonably rejected. Due to her childcare reasons and therefore her inability to work on a full-time basis, she had no choice other than to resign from her position.

The employee subsequently presented a claim before the employment tribunal. In her claim, she alleged that she had suffered a number of acts of discrimination and that she had been unfairly constructively dismissed.

Upon hearing the claim, the tribunal held that the employer's refusal to allow the employee to work on a part-time basis had been in breach of a number of the statutory provisions relating to sex discrimination. The tribunal was of the opinion that a complaint relating to flexible working under s.80H of the Employment Rights Act 1996 (“the Act”) was dismissed as being out of time. Resultantly, the tribunal came to the conclusion that the employee had resigned because:

§   Her application for flexible working had been rejected; and

§   She had thought that rejection unreasonable.

It was held that the rejection had not amounted to a breach of any express or implied term in her contract of employment, and in such circumstances, the tribunal found that she had not been dismissed within the meaning of s.95(1)(c) of the Act. Accordingly, the tribunal dismissed her claim for constructive unfair dismissal.

The employee appealed to the Employment Appeals Tribunal against this decision.

On appeal, the main issue which had to be decided on was whether the tribunal had made an error in treating the application for part-time work and the application for flexible working as being separate applications.

The appeal was allowed.

In this case, the employee's application for part-time working was deemed to be embedded in her application for flexible working. As a result, because she had resigned due to the rejection of her flexible working claim, that meant that is could be construed that she had also resigned on account of the rejection of her request for part-time work.

The tribunal found both direct and indirect discrimination in relation to the part-time work issue. In such circumstances, that discrimination had amounted to a fundamental breach of the relationship of trust and confidence by the employer, which prompted her resignation. Therefore, the tribunal had been incorrect to dismiss the employee's claim for unfair constructive dismissal.

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© RT COOPERS, 2008. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.