Introduction
The Employment Tribunal by reserved judgment has found in favour of the Claimant, Mrs. Limara Davies who brought claims against her former employer, Active 8 Managed Technologies Limited. The case, heard in Nottingham from 19–21 August 2024, included claims of indirect sex discrimination, pregnancy and maternity discrimination, constructive unfair dismissal, and breaches of the Flexible Working Regulations.
Mrs. Davies, supported by Park Square Barristers’ Head of Employment and Barrister Chelsea Brooke-Ward, who was instructed by Thrive Law, secured this significant victory. Chelsea’s expertise in trial advocacy and Thrive Law’s commitment to employee rights proved instrumental in navigating the complex legal issues and ensuring Mrs. Davies’s voice was heard. The case also benefited from the involvement of Pregnant Then Screwed, a charity dedicated to protecting the rights of working mothers, further highlighting the power of collaborative support in achieving justice.
This case underscores not only the need for employers to follow fair and lawful practices when it comes to women of child bearing age and the need to take the matters seriously, but also the importance of strategically pleading alternative claims to ensure claimants are fully compensated for the harm suffered.
Case Background
Mrs. Davies, employed as a Company Administrator since 28 May 2018, resigned on 27 October 2022. Her resignation followed what she alleged were discriminatory actions violating the Equality Act 2010 and the Employment Rights Act 1996. After initiating Early Conciliation with ACAS on 25 October 2022, Mrs. Davies formally lodged her claims with the Tribunal on 2 January 2023.
Key Findings
1. Indirect Sex Discrimination
The Tribunal found by agreement that Active 8 Managed Technologies Limited applied provisions, criteria, or practices (PCPs) that disproportionately disadvantaged women due to childcare responsibilities, including rigid full-time working requirements and fixed hours (8:30 am to 5:30 pm).
The finding was that the Respondent failed to justify these PCPs as a proportionate means of achieving legitimate aim, resulting in a ruling in Mrs. Davies’s favour. The Tribunal found the Respondent’s led no evidence on the “justification” defence and in line with the Guidance found that merely asserting proportionate means without supporting and cogent evidence was not enough.
2. Pregnancy and Maternity Discrimination
The Tribunal identified multiple instances of unfavourable treatment, such as the failure to conduct a risk assessment during Mrs. Davies’s pregnancy, refusal of flexible working hours, and poor communication regarding Keeping in Touch (KIT) days during maternity leave.
These actions were deemed discriminatory under section 18 of the Equality Act 2010.
3. Unfair Dismissal
Mrs. Davies’s resignation was ruled a constructive unfair dismissal. The Tribunal determined that the employer’s conduct, including mishandling her flexible working request and discriminating against her during maternity leave, breached the implied term of mutual trust and confidence.
As a result, Mrs. Davies was entitled to terminate her contract without notice.
4. Breach of Flexible Working Regulations
The Tribunal concluded that the employer mishandled Mrs. Davies’s flexible working request in violation of section 80G(1)(a) of the Employment Rights Act 1996.
Key failures included significant delays in processing the request, inadequate consultation, and providing unsubstantiated reasons for refusal.
The Importance of Pleading Alternative Claims
This case highlights the need to carefully draft employment claims, especially those involving refusals of flexible working requests. Claimants should ensure that alternative claims—such as indirect sex discrimination, breach of flexible working regulations, and unfair dismissal—are pleaded where appropriate. This approach maximises the potential for compensation by addressing all avenues of loss.
For example, breaches of the Employment Rights Act 1996 in relation to flexible working requests carry limited compensation—capped at eight weeks’ pay (subject to the statutory maximum weekly pay). However, when combined with a claim of indirect sex discrimination, compensation can include uncapped awards for injury to feelings under the Vento Bands, loss of earnings, and additional financial losses caused by the discriminatory practices.
Compensation in Claims Like This
In cases involving discrimination and breaches of flexible working rights, compensation can cover:
Injury to feelings: Awards are determined using the Vento Bands, currently ranging from £1,100 to £56,200 depending on the severity of the harm.
Loss of earnings: Reimbursement for income lost due to the discrimination or dismissal.
Future losses: Compensation for anticipated future income loss, often calculated based on career trajectory and time to secure comparable employment.
Aggravated damages: In rare cases, where the employer’s conduct was particularly egregious.
Breach of flexible working rights: A capped award of up to eight weeks’ pay, as mentioned above.
Mrs. Davies’s claims were pleaded strategically to encompass all these potential heads of loss, ensuring the Tribunal could consider the full impact of the employer’s actions.
Implications and Next Steps
This ruling serves as a critical reminder for employers to adopt transparent, timely, and fair processes when handling flexible working requests and supporting employees during pregnancy and maternity leave. It also emphasises the importance of claimants seeking skilled legal advice to identify and plead all possible claims, ensuring adequate compensation for the harm suffered.
The Tribunal will determine the remedy for Mrs. Davies at a hearing scheduled for 9 January 2025 at the Nottingham Hearing Centre. This judgment sends a significant message to Respondents that statutory requests must be dealt with appropriately and merely asserting difficulties with allowing flexible working will not be enough to substantiate a defence to such claim. It also reinforces the legal protections available under the Equality Act 2010 and the Employment Rights Act 1996.
Conclusion
The judgment in Mrs. Davies’s favour is a victory for employee rights, particularly concerning flexible working and maternity discrimination. It underscores the importance of strategic legal representation, robust advocacy, and collective action in challenging discriminatory practices. Employers must take heed of this decision and strive to create fair, inclusive workplaces that respect and support all employees.
For further guidance on employment rights or legal representation, contact our team of experienced barristers.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. For specific legal advice, consult a qualified professional.
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