Claimant v Gannons Commercial Law Limited
Outcome
Individual claims
Preliminary hearing only. Tribunal found sufficient ambiguity in claimant's 14 September 2022 email regarding resignation date that question of when employment ended (and therefore whether constructive dismissal occurred) required full fact-finding hearing to determine objectively how a reasonable recipient would have understood the email in context.
Preliminary hearing only. Whether claimant had 2 years' service depends on determination of resignation date (14 September 2022 vs 23 November 2022). Tribunal found this could not be fairly determined without full hearing of all evidence about the ongoing negotiations and context of maternity leave.
Claimant alleged automatic unfair dismissal under s104C ERA 1996 for making flexible working request or alleging grounds for s80H proceedings. Preliminary hearing did not determine merits; tribunal found causation and fact-finding could only occur at final hearing.
Claimant alleged unfavourable treatment under s18 EqA 2010 because of pregnancy, pregnancy-related illness, and exercise of maternity leave rights. Tribunal found allegations were context and fact-sensitive, requiring full hearing to determine whether acts occurred, whether they were detriments, and causation.
Claimant alleged PCPs requiring full-time office attendance and less favourable part-time terms disproportionately disadvantaged women with childcare responsibilities. Tribunal found this required full fact-finding at final hearing to determine group disadvantage, individual disadvantage, and justification defence.
Claimant alleged detriments under s47E ERA 1996 for making flexible working request. Tribunal found same reasoning as discrimination claims: allegations were context-sensitive and required full hearing to determine whether acts occurred, whether they were detriments under Shamoon test, and causation.
Claimant's notice pay claim turned on whether she was entitled to resign without notice due to respondent's repudiatory breach. Tribunal found this required determination of whether course of conduct amounted to breach of trust and confidence, which could only be decided after fact-finding at final hearing.
Facts
Claimant, a corporate solicitor, went on maternity leave and made a flexible working request in May 2022 to work part-time mostly from home. Respondent refused the request in September 2022. Claimant sent an email on 14 September 2022 which respondent contends was a clear resignation, but claimant argues she resigned on 23 November 2022 after respondent failed to engage with her about returning to work. The dispute over resignation date is crucial as it determines whether claimant had 2 years' service for ordinary unfair dismissal. Claimant also alleges discrimination because of pregnancy and maternity, and detriment for making flexible working request.
Decision
Tribunal refused claimant's application to substitute comprehensively amended 55-page grounds of complaint for original pleadings, finding the wholesale amendment was unwieldy and contained new matters that would be out of time. However, tribunal found claimant had substantially complied with earlier unless order. Tribunal refused to strike out or make deposit orders on any claims, finding the crucial question of when claimant resigned was ambiguous and required full fact-finding hearing, as did the context-sensitive discrimination and detriment allegations.
Practical note
Where resignation is alleged from words in an email during maternity leave, ambiguity about the intended termination date may prevent strike-out even where words appear on their face to be resignation, because objective construction requires consideration of full context including ongoing negotiations about future return to work.
Legal authorities cited
Statutes
Case details
- Case number
- 2200811/2023
- Decision date
- 17 January 2024
- Hearing type
- preliminary
- Hearing days
- 1
- Classification
- procedural
Respondent
- Sector
- legal services
- Represented
- Yes
- Rep type
- solicitor
Employment details
- Role
- Corporate Solicitor
Claimant representation
- Represented
- No