Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 4283/17

 

 

 

CLAIMANT: Charlene Gibson

 

 

RESPONDENT: The Cookery Nook Bakeries and Coffee Shops Ltd

 

 

 

DECISION

The decision of the tribunal is that:

 

(1)           The claimant's claims of unfair dismissal, failure to consider flexible working, and unlawful deduction from wages in respect of payment for an ante-natal appointment, are well-founded as set out in this decision. The claimant is awarded total compensation in the sum of £5706.72.

 

(2)           The claims of sex discrimination and part-time worker discrimination are dismissed.

 

 

Constitution of Tribunal:

Employment Judge: Employment Judge Murray

Members: Mr R Hanna

Mrs M O'Kane

 

 

Appearances:

 

The claimant was represented by her husband, Mr Gibson.

 

The respondent was represented by Mr K Smith, HR Consultant.

 

 

THE CLAIM

 

1. The claimant claimed:

 

(1)        Unfair dismissal in the form of constructive dismissal;

 

(2)        Sex discrimination and discrimination related to her pregnancy and maternity leave;

 

(3)        That her request for flexible working was not given proper consideration;

 

(4)        Discrimination on grounds of being a part-time worker;

 

(5)        Unlawful deduction from wages in relation to holiday pay and payment for ante-natal appointments;

 

(6)        Failure to provide written terms and conditions of employment.

 

THE ISSUES

 

2. An agreed legal and factual issues document was provided by the parties in advance of the hearing. The issues narrowed at hearing as follows.

 

3. In the constructive dismissal claim the issue for the tribunal was whether or not there was a breach of contract which was sufficiently serious to justify the claimant resigning in response.

 

4. In the list of issues the claim of sex discrimination related to a claim of direct discrimination and harassment on grounds of the claimant's sex, her pregnancy and maternity leave. In submissions Mr Gibson went into detail about an indirect sex discrimination claim.

 

5. In the flexible working claim the issue was whether or not the claimant's application for flexible working was given proper consideration in accordance with the legislation.

 

6. In the part-time worker claim the issue for the tribunal was whether the claimant was treated less favourably on grounds of being a part-time worker.

 

7. The unlawful deduction from wages claim related to a failure to pay for an ante-natal appointment and a failure to pay holiday pay.

 

8. The unlawful deduction from wages claim narrowed substantially during the hearing. The claimant alleged that she was not paid for an ante-natal appointment on
27 May 2017 and that this therefore amounted to an unlawful deduction from wages. During the hearing the respondent agreed that the claimant's claim for one hour's pay for that appointment was well-founded. We therefore award compensation equivalent to one hour's net pay as set out below.

 

9. The claimant alleged failure to pay holiday pay and that this amounted to an unlawful deduction from wages. During the hearing, after perusal of documents which were produced during the hearing, the parties agreed a settlement of the holiday pay claim and this was dealt with by way of a conciliated settlement with the aid of the Labour Relations Agency. The holiday pay claim was therefore dismissed having been conciliated and a separate decision was issued on 24 January 2018 in that regard.

 

SOURCES OF EVIDENCE

 

10. The tribunal heard evidence from the claimant and her husband Mr Kyle Gibson. The tribunal heard evidence from Mr Christopher Woods, Mr Keith Smith and
Mrs Leanne Lagan. The tribunal had written statements from all witnesses and had regard to the documents to which it was referred.

 

THE LAW

 

11. The case of Western Excavating v Sharp Limited [1978] IRLR 27 outlines the four key elements of constructive dismissal which the claimant must prove as follows: -

 

(i) There must be a breach of contract by the employer;

 

(ii) The breach must be sufficiently serious to justify the employee resigning;

 

(iii) The claimant must leave in response to the breach and not for some other unconnected reason; and

 

(iv) The employee must not delay too long in terminating the contract in response to the employer's breach as otherwise she may be deemed to have waived the breach of contract.

 

12. As regards the delay point there is no fixed time within which an employee must make up her mind to resign in response to a breach of contract as the surrounding circumstances are key.

 

13. Under the "last straw" principle, an employee can be justified in resigning following a relatively minor event if it is the last in a series of acts one or more of which amounted to a breach of contract, and cumulatively the acts amounted to a sufficiently serious breach of contract to warrant resignation amounting to dismissal. ( Omilaju [2005] IRLR 35 ).

 

14. The case of Malik [ 1997] 3 All ER 1 confirms that there is an implied term in the employment contract that the employer will not conduct itself in a manner likely to damage the relationship of trust and confidence between the employer and the employee. If the employer breaches that term, it can amount to repudiation of the contract.

 

15. Detriment is determined using the Shamoon test which is whether a reasonable worker would or might take the view in all the circumstances that the treatment was to the claimant's detriment in the sense of being disadvantaged.

 

16. The Sex Discrimination (Northern Ireland) Order 1976 (as amended) renders various types of sex discrimination unlawful including discrimination on grounds of pregnancy or maternity leave. It is for the claimant to prove detriment and it is for the claimant to prove facts from which we could conclude that an act of sex discrimination has occurred. If the claimant proves such facts the burden of proof shifts to the employer to provide an untainted explanation.

 

17. The law in relation to less favourable treatment on grounds of being a part-time worker is set out in the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations (NI) 2000.

 

18. The Employment Rights (Northern Ireland) Order 1996 (as amended) (ERO) sets out at Articles 83 and 84 the right to paid time off for ante-natal appointments.

 

19. Part IV of ERO deals with the right not to suffer unlawful deduction from wages.

 

20. An employee's right to request flexible working is set out at Part IXA of ERO. The right not to suffer detriment is set out at Article 70E. The statutory grounds on which an employer can refuse a request for flexible worker are set out as follows at Article 112G(1)(b):

 

"(1) An employer to whom an application under Article 112F is made -

 

(a) Shall deal with the application in accordance with regulations made by the Department, and

 

(b) Shall only refuse the application because he considers that one or more of the following grounds applies -

 

(i)       the burden of additional costs,

 

(ii)      detrimental effect on ability to meet customer demand,

 

(iii)    inability to re-organise work among existing staff,

 

(iv)    inability to recruit additional staff,

 

(v)      detrimental impact on quality,

 

(vi)    detrimental impact on performance,

 

(vii)   insufficiency of work during the periods the employee proposes to work,

 

(viii) planned structural changes, and

 

(ix)    such other grounds as the Department may specify by regulations."

 

FINDINGS OF FACT AND CONCLUSIONS

 

21. The tribunal found the following facts proven on a balance of probabilities after assessing all the evidence both oral and documentary. The tribunal applied the legal principles to the facts found in order to reach the following conclusions.

 

22. At the outset of the hearting the parties agreed to amend the title of the respondent from Cookery Nook Ltd to The Cookery Nook Bakeries and Coffee Shops Ltd. The title is hereby amended accordingly.

 

Introduction

 

23. The respondent is engaged in the bakery and coffee shop business with four outlets and approximately 50 staff of whom approximately 20 were counter staff. The claimant's job was as a counter assistant in one of the respondent's coffee shops. She worked for the respondent from 21 June 2012 until 6 July 2017 when she resigned before she returned from a period of maternity leave which had begun on 3 October 2016.

 

24. The central issues in this case related, in the main, to the circumstances surrounding the claimant's attempts to agree a change to her hours and pattern of work in preparation for her return from maternity leave. She was due to return from maternity leave on 2 July 2017. In the event, the claimant did not return to work as she resigned and her claim was that her resignation amounted to unfair dismissal and was a discriminatory dismissal.

 

25. We found the evidence of Mr Christopher Woods unsatisfactory and unreliable as it was, at best, confused and contradictory. It was clear from our assessment of Mr Woods' evidence and from the evidence generally that the lines of responsibility and decision making for HR matters in this company were disorganised and confused. It is our finding that the adverse treatment set out in this decision was born of this lack of organisation rather than for discriminatory reasons.

 

Written Statement of main terms and conditions

 

26. The claimant alleged that she did not receive written terms and conditions of employment. We accept the claimant's case which was that she did not see the written contract which was included in the bundle for these proceedings until she saw the documents for this case. We were dissatisfied with the evidence given by the respondent's witnesses in relation to that document as the evidence from them was, at best, confused and contradictory in relation to when that contract was produced. We also had concerns that the document was produced very late in the tribunal process.

 

27. We find it noteworthy that the contract which was produced had a flexible working application form attached to it which set out the statutory grounds for refusing such a request. No explanation was given to us as to why that form was not used by the respondent in the claimant's case if indeed it was the case that it actually was one of the company's documents at the relevant time. This is another reason why we doubt that this document was in use at the relevant time for this case.

 

28. In these circumstances we accept the claimant's case that she did not receive written terms and conditions of employment and we have decided that it is just and equitable in the circumstances to award her four weeks' pay.

 

Ante-natal appointment

 

29. Given the agreement of the parties we award one hour's net pay for the underpayment of salary for 27 May 2017 being the claimant's first ante-natal appointment.

 

30. The claimant was understandably aggrieved that she had received a letter from Mr Christopher Woods in June 2016 accusing her of having taken the whole afternoon off for that appointment. The claimant had swapped her shifts with another employee so that she could attend the ante-natal appointment in the afternoon and as a result, used only one hour of her employer's time to do so. Despite this the employer did not pay her for that hour. The respondent resisted the claimant's claim until Mr Woods in cross examination agreed that that sum was due. The claimant's uncontested evidence was that the gross pay for that hour was £7.50 and we therefore award the sum of £6.72 being the approximate equivalent net figure.

 

31. We find that the claimant's understandable annoyance at having been taken to task by Mr Woods over the ante-natal appointment in 2016 occurred too long before the key allegations in this case for it to have contributed to any breach of contract leading to the claimant's resignation. Indeed the claimant did not rely on this as having contributed to her decision to resign.

 

Holiday pay

 

32. The claim for unlawful deduction from wages relating to underpayment of holiday pay was settled by the parties during the hearing when relevant rota documents were produced by the respondent. Whilst the claimant clearly had to query the holidays over a period and documents were belatedly produced which led to an agreement between the parties, it was not part of the claimant's case that any confusion or dispute about her holiday pay entitlement contributed to her decision to resign.

 

Flexible working request

 

33. The claimant made her request for flexible working by letter of 10 April 2017. Under the legislation the employer had 28 days from the date of the application to set up a meeting to discuss the request and a further 14 days from that meeting to provide a decision. Any decision to refuse that request needed to be on one of the statutory grounds set out at A112G of ERO.

 

34. The claimant's application was for her hours to be reduced to 20 hours per week and that she should not work on a Saturday because of childcare difficulties. She also requested that she be given fixed days during the week so that she could set up her childcare arrangements with a nursery on an ongoing basis as the nursery required 6 weeks' notice of the days required.

 

35. Ultimately a meeting took place on 30 May 2017 with Mr Christopher Woods and
Mr Smith to discuss the request. We find that there was no good reason given by the respondent for the delay in arranging that meeting.

 

36. At the meeting on 30 May the claimant was told that she could reduce her hours but that if she wanted to work 20 hours she had to work on Saturdays. If she did not want to work a Saturday she would have to reduce her hours to 16 hours per week. It was common case that no agreement was reached at that meeting as the claimant wanted to speak to her husband to discuss the options.

 

37. Later that same day Mrs Gibson texted Mr Smith in relation to the proposed hours and he then rang her early the next day on 31 May 2017. That conversation contained one of the key disputed issues between the parties.

 

38. We have assessed the text messages which took place around that time and the evidence of the parties and we find that Mrs Gibson's account is the one which we prefer. We therefore find that Mr Smith agreed in that telephone conversation on 31 May 2017 that the claimant could work a 16-hour contract with a pattern of work whereby her days of work would be Thursday and Friday every week. The claimant reasonably relied on Mr Smith's agreement with her because it was reasonable for her to accept that he had the authority to make that agreement on behalf of the respondent given the history of her dealings with him and Mr Christopher Woods.

 

39. The claimant then proceeded to send texts to Mrs Sarah Jane Cochrane (who was the person who sometimes had responsibility for devising the weekly rotas) stating that her pattern was that she would work on a Thursday and a Friday on her return to work from maternity leave on 2 July 2017.

 

40. On 22 June 2017 the claimant attended at the shop to organise Thursday 20 July 2017 off for her sister's wedding. This supports the claimant's case that she believed that her new pattern of working on a Thursday and Friday had been agreed with Mr Smith in the telephone conversation on 31 May 2017.

 

41. Mrs Cochrane contacted the claimant on 28 June 2017 to offer her two alternative patterns in the rota for the next week (her first week back at work after her maternity leave) neither of which was the pattern which had been agreed with the claimant by Mr Smith.

 

42. The respondent gave evidence that Mr Smith did not have authority to make decisions for the respondent and that that rested with Mr Woods. We find that to be irrelevant to our deliberations in circumstances where Mr Smith had ostensible authority to reach agreement on the respondent's behalf given that he was involved in the negotiations with the claimant and actually offered her the pattern of Thursday and Friday working.

 

43. Whether Mr Smith overstepped his authority does not alter the position from the claimant's point of view which was that she reasonably relied on his offer given her history of dealings with the respondent's managers and Mr Smith. In this regard it weighs heavily with us that in the texts to and from Mr Smith and the claimant after Mrs Cochrane contacted her to give her a different working pattern, Mr Smith at no stage denied that he had reached that agreement with the claimant but apologised to the claimant stating that he had dealt with her in good faith. We deduce from that that Mr Smith believed he had reached an agreement for the respondent with the claimant about her working pattern.

 

44. In summary therefore from the claimant's point of view she had reached agreement with the respondent that her pattern would be 16 hours on a Thursday and Friday each week so that she could arrange childcare. She therefore proceeded to book childcare with the nursery and was thus committed to that financial expense. The claimant had also compromised with the respondent by reducing her hours so that she did not work on a Saturday.

 

45. We find that the respondent did not properly deal with or consider the flexible working request. We hereby grant a declaration to that effect and award compensation as set out in this decision. Our principal reasons for so finding are as follows:-

 

(1)        The claimant's request for a 20 hour week to exclude Saturdays was rejected but no clear reason was given to us by the employer as to why that was unacceptable when a 16 hour contract could facilitate the request not to work Saturdays.

 

(2)        The claimant was given no reason for her proposed pattern being rejected.

 

(3)        The respondent's explanation in tribunal was that they wanted to maintain consistency with the way they had treated Mrs Lagan and Mrs Cochrane on their return from maternity leave when they were refused their requests not to work on a Saturday. We note that that reason for refusing a flexible working request does not appear as one of the statutory reasons. We find that any request for flexible working should be considered on its merits at the time it is made. In our judgement a bare statement of refusal on grounds of consistency would not have been enough to comply with the duty to give the request proper consideration.

 

(4)        The respondent agrees that the shop was short staffed at that time to the extent that on 4 May 2017 an advertisement was placed to recruit a member of staff for the claimant's shop for a 30 hour week to include Saturdays. This advertisement was therefore placed three weeks after the claimant had requested her flexible working pattern and over three weeks before the meeting on 30 May 2017 with the claimant to discuss her flexible working request. This lends support to our finding that the respondent was not considering the claimant's application properly. It was open to them to tailor the recruitment terms for new staff so that they could have explored ways to facilitate the claimant's request when recruiting further staff.

 

(5)        We note that Mrs McClelland was an employee who only worked during the week and never had to work Saturdays. It was common case that the reason for this was that she had been taken on to replace the person who had left and who had worked that pattern. Her contract therefore stipulated that she work weekdays only. This showed us that Saturday working was not necessarily applied to everyone. We were given no explanation as to why the respondent did not give consideration to organising the numerous employees in four shops so that some facilitation could have been given to the claimant about her request for 20 hours per week with no Saturday working. We note in this regard that there was a practice whereby employees could be moved from shop to shop to fill gaps in the rotas.

 

(6)        There was a delay in setting up the meeting to discuss the claimant's request and no good reasons given to us for that delay nor for the delay in dealing with the application generally.

 

(7)        There was confusion as to who was making the decision in that regard and the claimant was essentially sent to several different managers when she tried to clarify the position.

 

(8)        Mr Woods said that he took the decision about the flexible work hours and pattern without reference to Mrs Lagan who normally dealt with the rotas and was the claimant's line manager. We find that he therefore could not have considered it properly without assessing with Mrs Lagan whether the claimant's proposed pattern could be accommodated.

 

(9)        Mr Smith alluded in submissions at the end of our hearing to a desire on the respondent's part to ensure that there was no unrest amongst the staff. As was the first time that this reason was referred to in the hearing we excluded it from our deliberations except to observe that it does not constitute one of the statutory reasons for refusing a flexible working request.

 

46. To be clear, we do not accept the reasons given to this tribunal as we find that the respondent simply would not consider the request and this therefore amounted to a failure to comply with their statutory obligations.

 

Constructive dismissal

 

47. The claimant's claim of constructive dismissal rested on two allegations of a breach of contract namely, firstly, that she could not face returning to work because of Leanne Lagan's attitude and behaviour to her in relation to her new pattern of work and, secondly, that the agreement she had reached on the pattern for her part-time working was not honoured by the respondent following a period when the claimant struggled to have her request for flexible working dealt with by the respondent.

 

(1)   Mrs Lagan's attitude and behaviour

 

48. We have carefully weighed up all the evidence presented to us and the demeanour of the witnesses and we are not persuaded that the relationship between the two women had broken down to the degree alleged by the claimant.

 

49. Both sides agreed that both women had been very friendly to the extent that they each visited each other's families. Mrs Lagan candidly admitted in evidence that she was annoyed that she had been refused her request to not to work on a Saturday after her return from maternity leave, and she was also clearly annoyed that she had been "bypassed" by the claimant when the claimant made the request for flexible working. Mrs Lagan's position was that it was her job to deal with any queries about leave and in our estimation she was very annoyed that the claimant had decided to go straight to the directors to sort this out. We accept Mrs Lagan's evidence that she had at no point received an indication from the directors in relation to the claimant's prospective pattern of work. Mrs Lagan stated that the only thing she heard was "gossip" about what pattern the claimant might return to. This is one of the indications of the disorganisation in the respondent company and it left both the claimant and Mrs Lagan in a difficult position.

 

50. The person who rang the claimant about her rota for her first week back at work was Mrs Cochrane and we were given no explanation as to why Mrs Cochrane was the person to talk to her about her pattern when Mrs Lagan was at work that day. We believe that Mrs Lagan had by then decided that she did not want to deal with the claimant about her work pattern because she believed that the claimant had bypassed her and because the directors had not told Mrs Lagan what pattern the claimant was returning to.

 

51. Whilst things had become somewhat 'frosty' between the two women, nevertheless we do not find this supportive of the claimant's case that there was a breach of contract nor do we find that it contributed to any breach of the implied term of trust and confidence.

 

52. The claimant alleged that on two occasions Mrs Lagan was aggressive and obstructive to her. Mrs Lagan disputed this. Even if we accept the claimant's account we do not accept that the claimant's case, at its height, amounted to behaviour by Mrs Lagan which could reasonably have led the claimant to think that the relationship with her employer had broken down irretrievably.

 

53. One of the incidents relied upon was the claimant's attendance at the shop on 22 June 2017 when she looked at the holiday rota in order to organise Thursday 20 July off for her sister's wedding. When Mrs Lagan saw the claimant doing this there then ensued a conversation which the claimant characterised as aggressive and Mrs Lagan characterised as her simply trying to clarify what the claimant was doing because as far as she was aware the claimant did not work on a Thursday anyway.

We accept Mrs Lagan's account of that as she did not know for definite what the claimant's pattern was going to be as all the claimant's dealings on agreeing her pattern had been with Mr Woods (and previously his mother) and with Mr Smith. We have no doubt that the encounter was probably terse but our assessment of both women was that they could both be rather feisty or combative.

 

54. In summary we do not find that Mrs Lagan's encounter with the claimant on that date together with her conversation later on the telephone when she stated "on your own head be it" (albeit that Mrs Lagan denies that she said this) could amount to sufficiently serious conduct from the manager to warrant the claimant thinking that the relationship had broken down so much that it amounted to a breach of the implied term of trust and confidence. This is so particularly in circumstances where there were four shops and 50 employees of whom approximately 20 were counter staff. We therefore do not accept the claimant's point that her reluctance to return to work at that shop with Mrs Lagan constituted a breach of contract which justified her resignation. We also do not accept that it contributed to any breach of the implied term of trust and confidence in the contract with the respondent.

(2)   Failure to honour the agreed pattern

 

55. The second element which the claimant relied upon for the breach of contract leading her to resign was the failure to honour the flexible working pattern that she had agreed with Mr Smith as this followed a lengthy period when she had struggled to have her request dealt with by the respondent.

 

56. The claimant's evidence was that it was only when it was clear to her that that agreement would not be honoured that she looked for another job. She very quickly was given an interview and an offer of a job within a couple of days as a care assistant. Indeed this sequence of events was accepted by the respondent in questioning the claimant when they saw the documentation. We find that this is not a case where the real reason for the claimant leaving was that she had another job. The issue for us is what caused her to leave and whether that cause was a repudiatory breach of her contract or a last straw event in a series of events which cumulatively amounted to a breach of contract.

 

57. In our judgment the claimant was caused to leave because of the failure to honour the agreement she had reached following an unreasonably long period when she had been 'passed from pillar to post' by the employer over a period of approximately 10 weeks from 10 April 2017 to the end of June 2017. When she finally reached an agreement (after she had compromised by agreeing to shorter hours) it was made clear weeks later that the agreement was not going to be honoured. She had by then committed herself to the expense of a nursery place and she had attended with her doctor on 26 June 2017 with stress because of the way she had been treated in relation to the flexible working request. The doctor provided her with a sick line for one month on that basis stating that she was not fit to work.

 

58. We have found that there was an agreement reached on the pattern of part-time working and it then became clear that that was not going to be honoured and
Mr Smith confirmed that when she asked him for clarification. We find that to be a breach of contract which amounted to a last straw and warranted her resigning in response, as it was the culmination of the respondent's inadequate and unreasonable response in relation to her flexible working request over the previous 10 weeks. The respondent knew that the claimant was under pressure because of the requirement to organise the nursery place for her daughter as it was clear that those places were filling up and that availability was becoming more limited. The respondent also knew that this was the driver for her persistently trying to pin down the agreement on her pattern. It was the respondent which was in the position of relative strength in this scenario and it was therefore for the employer to have clear systems in place and to deal expeditiously and reasonably with the request given that the claimant had made it clear that she had to have some notice in order to organise childcare before her return to work.

 

59. Whilst we have found this decision to be finally balanced, a key reason underpinning our decision that the failure to honour the pattern she had agreed justified the resignation, is that there was little the claimant could have done other than to try to clarify what she had agreed with Mr Smith. He then made clear that the respondent was resiling from the agreement reached a few weeks before. The claimant was by then already committed to childcare which involved a financial obligation and, given her experience with the employer, she then lost confidence in their ability to deal with her request which had been delayed unreasonably. Even on Mr Woods' account that he alone could make a decision on the claimant's pattern, no decision had actually been communicated to her even though her return to work was imminent. To be clear we reject Mr Woods' assertion that no agreement was reached with the claimant via Mr Smith on 31 May 2017.

 

60. The short notice of the change of pattern and the effect on her childcare was a very serious matter for the claimant and understandably so especially as it followed the inadequate consideration given to her flexible working request. We find that the claimant was justified in seeking another job and she resigned in response to this last straw breach of contract.

 

61. The reason for her resignation was therefore the failure to honour the flexible working agreement. In the context of her difficulties in that regard over the previous 10 weeks, this was a last straw and amounted to a repudiatory breach of contract which justified her resignation. The claimant resigned in response and she did not delay.

 

Sex discrimination

 

62. In the issues document agreed before the hearing, the claimant's claim related to sex discrimination in the form of less favourable treatment and harassment in that she alleged that she was discriminated against in connection with pregnancy and maternity leave. We reject the claimant's claim in this regard. The fact that the claimant was returning from maternity leave does not of itself mean that that was the reason for any adverse treatment. We do not find that the reasons for her adverse treatment were related in the requisite way to her pregnancy and maternity leave nor to her sex.

 

63. The sex discrimination claim in submissions in tribunal rested on an allegation of indirect discrimination. We reject that claim on the basis that there was no evidence that women with childcare responsibilities were put at any particular disadvantage due to the particular pattern that the claimant wished to work. The claimant's point in this regard was that she wanted to work a fixed part-time pattern which did not include a Saturday. There was no evidence before us that there was any particular disadvantage applicable to women as a group in relation to the application of any such provision, criterion or practice. In this case both sides agreed that fewer days were available to the claimant who was returning from maternity leave after having been a full-time worker. There was no evidence of any animus towards the claimant grounded on her pregnancy, maternity leave or sex. The respondent employed numerous women on different patterns and they had facilitated part-time working with other women returning from maternity leave.

 

 

 

Part-time worker

 

64. The claimant was a full-time worker on maternity leave who wanted to return part-time. There was agreement that the claimant could return part-time but the issue of contention was on the pattern which she wanted to work. It was the pattern that was in issue and not the fact of being part-time and given the fact that the claimant agreed (albeit reluctantly) to that pattern, we had no evidence to suggest that the claimant was treated less favourably on grounds of being a part-time worker.

 

65. The reason for the adverse treatment (ie the refusal of the claimant's preferred pattern) was the respondent's inflexibility in relation to considering whether any employees who worked Saturdays could be allowed to change their pattern to exclude working on a Saturday. The requirement to work on a Saturday applied to all but one employee. We accept that the reason for that employee being given her particular pattern was because she replaced an employee who had the same pattern and it was a specific term of her contract that her pattern of work was that she worked only on weekdays. There was therefore no evidence of less favourable treatment compared to a full-time worker on the same type of contract. The reason for resiling from the pattern agreed with the claimant was because of the confused lines of management in the respondent's organisation. That reason was not related in the requisite way to the claimant's request to go part-time.

 

66. There was no evidence before us to suggest any animus by the respondent towards part-time workers. The key issue in relation to Saturday working was that there was an acknowledgement by everyone (including the claimant) that Saturday was the busiest day for the shop; that nobody wanted to be obliged to work every Saturday; that there had previously been applications by other staff to exclude Saturday working; and that these applications had been refused. We therefore reject the claim that the claimant was discriminated against on grounds of being a part-time worker.

 

Compensation

 

Unfair dismissal

 

67. The claimant stated in her claim form that she earns £7.50 gross per hour and this amounted to net pay of £260.00 per week. The respondent did not contest these figures so we have based our calculations on these figures. We have estimated gross pay to amount to of £290.00 per week in order to calculate the basic award.

 

68. There was no claim for loss after the date the claimant started her new job on 4 July 2017.

 

69. The effective date of termination was 6 July 2017 and the claimant's age at the EDT was 32. The claimant has claimed 25% uplift for failure to follow the statutory procedures. No such uplift is applicable in constructive dismissal cases so that aspect of the claim is rejected.

70. The calculation of compensation is therefore as follows:

 

(1)           Unfair Dismissal

 

(a) Basic award

 

5 x £290 gross weekly pay £1,450.00

 

(b) Compensatory award

Three weeks x £260 net pay £ 780.00

Loss of statutory industrial rights £ 350.00

 

Total compensatory award £1,130.00

 

Add basic award £1,450.00

________

Total compensation for unfair dismissal £2,580.00

(2)           Flexible working claim

 

8 weeks' wages £2,080.00

 

(3)           Statement of main terms and conditions

 

Four weeks' wages £1,040.00

 

(4)           Unlawful deduction from wages claim

 

The agreed gross figure for the ante-natal appointment

was £7.50. The equivalent net figure is approximately £6.72.

 

Summary compensation

 

71. Unfair Dismissal Compensation £2,580.00

Flexible Working £2,080.00

Terms and Conditions £1,040.00

Ante-natal Appointment £ 6.72

________

TOTAL £5,706.72

 

72. The total compensation awarded by this tribunal therefore amounts to £5,706.72.

 

73. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

 

Decision on costs

 

74. The claimant applied for costs in the form of a Preparation Time Order (PTO) in relation to a Case Management Discussion which took place on 23 November 2017.

 

75. A CMD was listed for 9 November 2017 and the representative for the respondent did not attend. Following enquiries Mr Smith stated that he had overlooked the CMD and he apologised. At the CMD the Employment Judge clarified issues and timetabled the case for hearing in the absence of the respondent given that the claimant was pregnant and there was urgency about timetabling the case so as to have it listed before she had her baby which was due in mid-March. A further CMD was listed for 23 November 2017.

 

76. In the CMD record which was sent to the parties on 9 November 2017, the parties were told that the next CMD could take place by way of telephone conferencing facilities. The parties were urged to try to agree legal and factual issues before that date and, if they were sent to the tribunal in advance of the CMD, then the CMD on 23 November 2017 might not be required at all.

 

77. Several emails passed between the parties and the tribunal on 21, 22 and 23 November.

 

78. In the event Mr and Mrs Gibson attended on the morning of the CMD and Mr Smith took part on the telephone. Several matters (other than the legal and factual issues document which was by then agreed) were discussed and clarified at that hearing.

 

79. Mr Gibson's application was essentially that the CMD on 23 November 2017 was unnecessary and that he and the claimant had incurred expenses and loss of wage by attending in person.

 

80. The first matter we must decide is whether or not the behaviour of the respondent and Mr Smith in relation to the CMD on 23 November 2017 amounted to unreasonable behaviour in the conduct of proceedings within the meaning of the relevant Rules.

 

81. Having assessed the contact between the parties prior to the CMD on
23 November 2017 we are not persuaded that the conduct of the respondent and Mr Smith amounted to unreasonable conduct. In reaching this conclusion we note that Mr Smith agreed an issues document on 21 November 2017 and it was a further amended document provided by Mr Gibson on 21 November that Mr Gibson sought agreement on. Taking part on the telephone was open to the Gibsons too. We also bear in mind that costs do not inevitably follow in the tribunal and we take account of the fact that in the event, several matters were dealt with at that hearing aside from the legal and factual issues.

 

82. As we have found that the behaviour of the respondent did not amount to unreasonable behaviour within the meaning of the Rules, we find that costs in the form of a PTO are not payable. We therefore reject the application for costs.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 22-26 January 2018, Belfast.

 

 

Date decision recorded in register and issued to parties: