A former Lacoste employee who was refused flexible working after maternity leave and lost her claim for indirect sex discrimination has succeeded in having the decision overturned at an employment appeal tribunal.
Melissa Glover worked as an assistant manager at the fashion retailer and during her maternity leave, submitted a flexible working request asking to work three days a week in order to manage childcare. This was rejected, and she was told that all managers had to work full-time. After an appeal, she was offered four days but under the condition that she was fully flexible as to which ones.
Glover sought legal advice and appealed this decision, upon which Lacoste said it would agree to four days to be worked flexibly on any day, and offer this on a six-month trial period. However, it then refused to make the arrangement permanent after the trial, which resulted in her solicitor asking for this to be reconsidered, as Glover would otherwise have no option other than to resign and claim constructive dismissal.
In April 2021, Lacoste agreed to her original request. The following month, Glover submitted a claim to the employment tribunal asserting a breach of flexible working provisions and indirect sex discrimination. The day before the tribunal, she applied to amend her claim to include provision, criterion or practice (PCP) that included the requirement for flexible working.
The initial tribunal rejected her claim, ruling that the PCP requiring flexible working had not been applied as she was never required to work full-time and had not suffered disadvantage. The employment appeal tribunal disagreed, stating that the PCP requirement was applied for indirect discrimination purposes, even though the decision was reversed before she returned to work.
Judge James Tayler said in his judgement: “The employment tribunal erred in law in holding that the determination at an appeal hearing that the claimant must work a fully flexible part-time work pattern did not involve the application of a PCP because the decision was revoked after the claimant’s solicitors had sent a letter before action. The only possible determination was that the PCP was applied. The matter was remitted to a newly constituted employment tribunal to determine the remaining live issues.”
