The sequence of events for the claimant in Little v Richmond Pharmacology Ltd, a sales executive working full time, was as follows:
- September 2009: start of maternity leave following the birth of her second child
- April 2010: claimant applied for a flexible working arrangement to start on her scheduled return in August 2010
- 17 June: her line manager rejected the application on the basis that it was not feasible for a sales executive to work part-time
- 9 July: claimant appealed
- 14 July: appeal letter received by her employers
- 19 July: claimant resigned
- 19 July: employers asked her to reconsider until the appeal hearing took place
- 22 July: appeal hearing; claimant offered a three month trial on the terms she had suggested
- 26 July: claimant confirmed that her resignation stood.
The claimant's case in her subsequent unlawful discrimination claim in the Employment Tribunal was that she had been subjected to a detriment when her application to work part-time was refused on 17 June. But the Tribunal, with whom the EAT agreed, rejected that claim, on the basis that because the line manager's initial decision was expressed to be subject to the claimant' right of appeal, it was in effect conditional on the outcome of an appeal. As that process was ultimately successful, the requirement to work full time was not to be applied to her when she completed her maternity leave. In other words, she had not suffered any detriment.
Although this issue had not arisen before in a discrimination claim, the EAT pointed out that in assessing the fairness of a dismissal, a tribunal can take into account what happened on an internal appeal, for example to decide that an initial procedural defect has been cured (and conversely, an employer's failure to investigate points raised by an employee on appeal may make what was a fair dismissal unfair). The EAT likened the scenario to a "vanishing" dismissal, the classic example being Roberts v West Coast Trains Limited in 2005 where an employee dismissed for misconduct appealed against the decision but before the appeal was heard, put in an unfair dismissal claim. The appeal resulted in the sanction of dismissal being replaced by demotion plus a final written warning. The Court of Appeal held that the effect was that the unfair dismissal claim fell away.
One point to note is that the unfair constructive dismissal claim in Little v Richmond Pharmacology Ltd, relying on an alleged breach by the employer of the implied term of mutual trust and confidence, was ruled out of time by the Tribunal and not considered by the EAT. The rule about "curing" breaches does not apply to constructive dismissal; unless the employee affirms the contract there is nothing an employer can do to retrieve the situation.