Deaf Employee Wins Sex Discrimination Case After Employer Refuses Flexible Working Request

In the case of Ms L Hedger v British Deaf Association, a deaf employee was successful in her claims for indirect sex discrimination. Additionally, she claimed that the employer breached procedures for handling flexible working requests which led to constructive unfair dismissal.

The facts in Ms L Hedger v British Deaf Association

 Ms L Hedger (the “Claimant”) began employment with the British Deaf Association (the “Respondent”) on 5 March 2014 as a Part-Time Project Assistant, Film Heritage. She worked for 21 hours per week on a fixed-term contract due to expire on 1 December 2016. On clause 13 of her stated of terms, it stated: –

Should you need to work on a flexible basis as you have young children aged 16 years or under or disabled children aged 18, you can request a more flexible pattern of working hours or working arrangements. The BDA will give serious consideration to any such request and will explore other alternatives. If we have to reject any such request we will provide specific business reasons for this. Please speak to the Managing Director of the BDA for further details on this request.

In March 2015, the Claimant reached a mutual agreement with the Respondent to increase her hours from 21 hours per week to 28 hours per week. Thereafter, On 15 March 2017, the Claimant took the post of Project Manager, Film Heritage. The role came with an increase in salary along with an extension of her fixed-term contract to 28 February 2018.

The Claimant informed the Respondent that she was pregnant and was due around the end of December 2017. On September 2017, the Respondent employed Justin Smith to provide maternity cover. He worked on a full-time basis, five days a week. Subsequently, on 5 October 2018, the Claimant wrote to the Respondent asking to defer her return to work until 4 February 2019 to which the Respondent agreed.

On 25 October 2018, the Claimant sent a flexible working request to the Respondent. Using the appropriate form, she requested that her proposed new hours would be 9 am to 5 pm on Monday and Tuesday. In addition, she requested a change in working patterns from four days a week to two days a week. She suggested this would work as part of a job share arrangement with Justin Smith working the remaining days.

At a meeting on 14 December 2018, the Claimant was informed by Mr Barry, the Executive Director, that Mr Smith had no interest in a job share arrangement.  On 17 December 2018, the Claimant suggested the Respondent look into finding another member of staff to job share. But, no action was taken on this suggestion.

On 19 December 2018, Mr Barry on behalf of the Respondent, wrote to the Claimant rejecting her request for a reduction in her hours. He rejected her request for two reasons. First, he said there was no one to replace her.  And second, he mentioned it could negatively impact the work she does.

On 1 February 2019, the Claimant raised a formal grievance. She argued that she had been treated unfairly in the way her flexible working request had been handled. She received a response on 21 February 2019. The Respondent rejected the Claimant’s grievance and upheld the original decision to refuse her flexible working request.

On 31 March 2019, the Claimant resigned citing a breach of trust and confidence by the Respondent. She claimed they failed to address the specific concerns she had raised in her grievances. Plus, the refusal of her request amounted to indirect sex discrimination under the Equality Act 2010.

The Decision of the Employment Tribunal

The ET found in favour of the Claimant, for the following claims:

  • Indirect sex discrimination

The Provision, Criterion or Practice (PCP) that the Heritage Project Manager post had to work a minimum of 28 hours per week and a minimum of four days per week clearly discriminates against women with child-caring responsibilities, according to ET.

  • Breach of flexible working procedures

ET found the employer did not follow their flexible working procedures correctly in denying the Claimant’s request and subsequent grievance.

  • Constructive unfair dismissal

 On this part of the claim, the tribunal judge commented:

‘The respondent’s actions in refusing the flexible working request, without reasonable and proper cause, was likely to destroy or damage the relationship of confidence and trust between employer and employee

As a result, the Claimant was awarded the following in compensation:

  • £11,000 for injury to feelings:
  • £16,903.32 for loss of earnings:
  • £775.38 for loss of pension contributions;
  • £2,032 for breach of flexible working rules under the Employment Rights Act 1996 plus interest owed.

Our Lawyer’s Comment on This Case

Stephen Norton, a lawyer at Redmans, comments on the case: “The employer, in this case, had made no effort to accommodate the Claimant’s desire to continue working on her return from maternity leave. Likewise, they did not find a more flexible way to meet her child’s caring needs and ultimately found to have been acting unfairly and in a discriminatory manner”.

The decision of the Employment Tribunal can be found here