Employee dismissed after making flexible working request subjected to maternity leave discrimination (Mrs S Maher v Taylor Engineering & Plastics Ltd – 2401590/2020)

In the case of Mrs S Maher v Taylor Engineering & Plastics Ltd 2401590/2020, Mrs Maher was successful in her claims maternity leave discrimination as well being found to have been constructively dismissed.

The facts in Mrs S Maher v Taylor Engineering & Plastics Ltd

Mrs Mather (the “Claimant”) commenced employment with Taylor Engineering & Plastics Ltd (the “Respondent”) on 24 January 2005. Originally a sales administrator, she was promoted to Internal Sales Supervisor from January 2015. In addition to her duties associated with this role, she also carried out some duties as personal assistant to the managing director, John Newbold.

The Claimant argued that during the course of her employment with the Respondent she had;

been subjected to discrimination because of her period of maternity leave;
been subjected to indirect sex discrimination;
been constructively dismissed due to unlawful maternity leave discrimination.

On 17 September 2018, the Claimant wrote to the Respondent informing them that she was pregnant and confirmed her maternity leave would start on 3 December 2018. Her expected date of confinement was 29 November 2018. Her duties were covered by Rebecca Walton, recruited by the Claimant on behalf of the Respondent.

On 17 September 2019, the Claimant wrote to the Respondent making a request for shorter working hours, preferably working Wednesday, Thursday and Friday in the office. This was due to travel problems and organising suitable childcare for her daughter. The Respondent received this letter on 21 September 2019.

On 25 September 2019, Carol Richardson from the human resource department, replied on behalf of the Respondent, rejecting the Claimant’s request of moving to part time hours, stating “I hope you understand that this is a business decision, as your role requires a full-time manager”. No meeting was organised by the Respondent to discuss the Claimant’s proposal, in breach of its own flexible working policy.

On 3 October 2019, the Claimant wrote to John Newbold requesting she be allowed to return to full time duties, but working from home for two days, arguing she had previously worked under such an arrangement, and other staff had been allowed to do so. She also offered to downgrade to the role of sales administrator, on part-time hours. The Claimant also asked more generally about other more suitable roles for part-time working or working from home on certain days. This letter was received by the Respondent on 8 October 2019.

On 7 October 2019, Rebecca Walton was involved in a recruitment exercise to look for someone to fill a role for a full-time receptionist/office support position. The Claimant was not told of this vacancy or considered for the post on a part time, or job share basis with another member of staff.

On the 1 November 2019, the Claimant wrote to John Newbold raising a formal grievance concerning the decision to refuse her request to work part time hours. She argued that the two decisions made by the Respondent amounted to discrimination against her as a new mother with primary childcare responsibilities. She also argued that the Respondent had treated male colleagues more favourably when it came to flexible working, and that two other new mothers had also been subjected to discriminatory treatment, which resulted in them resigning.

On 20 November 2019, the Claimant attended a grievance hearing. The Claimant stated she was aggrieved that no one had discussed with her, her requests for flexible working. She was asked to put other proposals for the Respondent to consider, which she agreed to do. The Respondent agreed to look into her grievance. The Claimant submitted four further proposals on 25 November 2019 for flexible working arrangements with a range or part time and home working options.

On 26 November 2019, Ian Bolton, Head of Finance, on behalf of the Respondent, wrote to the Claimant informing her that her grievance had not been upheld. The letter did not deal with the allegations of sex discrimination in the way flexible working requests from male employees had been dealt with.

On 9 December 2019, the Respondent wrote to the Claimant in response to her proposals submitted on 25 November 2019, rejecting her proposals. The Respondent argued that the Claimant’s job role was not considered suitable for flexible working, as it required full contact with external clients and internal production departments, as well as extensive contact and attendance at daily production meetings. She was told to return to work on 2 January 2020.

On 19 December 2019, the Claimant wrote to the Respondent giving notice of her resignation effective from 10 January 2020. She stated in her letter “I feel that I have been pushed towards this decision by the company itself and have been left with no other alternatives. I have worked for TEP for 15 years and have prided myself in being loyal, hardworking and above all when the company has needed it. However, over the last three months the company has not shown me the same attributes or respect I would have hoped I have earned”. The Respondent accepted the Claimant’s resignation.

On 16 December 2019, the Claimant contacted ACAS and began proceedings at the Employment Tribunal on 28 February 2020. The Claimant named five male comparators.

The decision of the Employment Tribunal

The Employment Tribunal found that:

The failure to engage properly with the Claimant whilst she was on maternity leave to seek a return to work was unfavourable treatment and amounted to discriminatory reasons based on her maternity;
The refusal to engage with any requests made by the Claimant during the protected period to return to work other than on full-time duties in the workplace, was an act of maternity discrimination under s.18(5) of the Equality Act 2010;
The decision by the Respondent not to consider the Claimant for the role of receptionist/administrator on a part time basis was unfavourable treatment amounting to an act of pregnancy/maternity discrimination;
The PCP (provision, criteria or practice), that the role of sales manager and the role of receptionist/administrator had to be carried out on a full time basis, and from the office premises of the Respondent put the Claimant at a disadvantage, thus her claim for indirect sex discrimination was also made out;
The failure of the Respondent to engage with the Claimant on any of her flexible working proposals, mishandling of her grievance had amounted to a breach of the implied term of trust and confidence and following the `final straw’ argument, in the way her request dated 25 November was handled. He resignation amounted to being constructively dismissed by the Respondent;
The dismissal was related to the Claimant’s pregnancy/maternity and amounted to automatic unfair dismissal.

Our lawyers’ views on the case

Steve Norton, a lawyer at Redmans, commented: “It is interesting to note that in its conclusions the tribunal discussed certain stereotypical assumptions made by the employer in this case and how this influenced their decision making. In the case of its failure to give proper and reasonable consideration to the Claimant’s request for flexible working, the employer had worked on the assumption that the employee, as a new mother, would only wish to return to work on a part time basis, ignoring the substance of her various proposals which included suggestions to work remotely on some days whilst still maintaining her normal hours. In addition, the employer made the mistake of not acting fairly in the way that it treated the Claimant while on the maternity leave including failing to consider the Claimant for a job opportunity. Finally, the employer forgot that a classic indirect sex discrimination case often arises from a PCP that is applied in such a way that it disproportionately affects women more than men because of the formers role as primary caregivers.”

The decision of the Employment Tribunal in Mrs S Maher v Taylor Engineering & Plastics Ltd – 2401590/2020 can be found here