Ms Asher Thomson v Orlight Ltd (England and Wales : Breach of Contract) -[2019] UKET 3304802/2018- (3 April 2019)

Key Facts

Issues

• The tribunal assessed whether the requirement for an 8am start time constituted a provision, criterion, or practice that put women at a particular disadvantage compared to men, finding no evidence of such disadvantage.
• The tribunal determined whether the claimant was entitled to payment for attending an induction day before her employment commenced on 8 January 2018, finding she was not entitled to payment as attendance was not in connection with her employment.
• The tribunal determined whether the claimant's dismissal was automatically unfair because it was connected to her request for time off for childcare, finding the dismissal was not connected to her childcare arrangements.
• The tribunal examined whether the claimant was treated less favorably than a man due to her sex, including questions about childcare arrangements and workplace treatment, finding no evidence of sex-based discrimination.

Holdings

Remedies

Legal Principles

• The tribunal applied Section 57A of the Employment Rights Act 1996 for time off for dependents, Section 13 of the Employment Rights Act 1996 for unlawful deduction of wages, and relevant case law (such as New Century Cleaning v Church) for interpretation of these provisions.
• The tribunal applied Section 136 of the Equality Act 2010, which shifts the burden of proof to the respondent once the claimant establishes facts from which unlawful discrimination could be inferred. This principle was crucial in determining the outcome of the discrimination claims.

Precedent Name

• H Fox v British Airways
• West Yorkshire Police v Homer
• Qua v John Ford Morrison
• Dziedziak v Future Electronics Ltd

Cited Statute

• Equality Act 2010
• Employment Rights Act 1996

Judge Name

Passage Text

• 112. The Tribunal finds that on the claimant having issues arising for childcare, on her cancelling her children's spaces with Bumble Tots childcare on the 4 January 2018 and continuing her children's attendance at the nursery breakfast club, this was a decision of the claimant and was not a circumstance sufficient for the purpose of Section 57A(d), being because of the unexpected disruption or termination of arrangements for the care of a dependent; the termination being at the claimant's behest. The Tribunal has not been furnished with any circumstance relating thereto, for which the claimant was unable to plan for in advance. 113. In these circumstances, the Tribunal finds that there has not been a breach of Section 57A of the Employment Rights Act 1996. 114. The Tribunal accordingly finds that, there has not been a failure to permit the claimant reasonable time off during her working hours because of any unexpected disruption or termination of arrangements for the claimant's children. The Tribunal finds no substance to the claimant's contention to found a claim under s99 ERA.
• The unanimous judgment of the tribunal is that: 1. The claimant has not been automatically unfairly dismissed. 2. The claimant has not been subject to discrimination on the protected characteristics of sex. 3. The claimant has not suffered an unlawful deduction from her wage. 4. The Tribunal accordingly dismiss the claimant's claims.
• 115. The Tribunal finds that questions were had as to the claimant's personal life and childcare arrangements by Mr Yankey, however, these were part of general discussions being had by the claimant and the team and Mr Yankey, on her attending the induction day, and that further questions being asked of the claimant on the 9 January 2018 were questions naturally arising on the claimant requesting a change to her start time owing to her childcare arrangements. 116. To the extent that the events above referred occurred, namely Mr Yankey asking questions about the claimant's personal life and childcare arrangements, the Tribunal has not found circumstance from which it could infer or otherwise conclude that, the treatment was less favourable than treatment that would be afforded to a man, whether hypothetical or otherwise Mr Yankey. The Tribunal finds that on an individual raising questions as to a member of staff's children for which there then follows discourse as to children generally, the Tribunal finds that such discussion would have been the same had it been a male or female. Indeed, with regard to Mr Yankey, it is not in dispute that Mr Yankey was asked questions about his child being newly born and was the catalyst for the ensuing discussions of which the claimant complains, and who is male. The tribunal does not find any connection to gender being a factor in the discussions had. 117. With regard to the claimant seeking to amend her start hours of work due to childcare, the discussions thereon had, as to her childcare arrangements, are discussions that this Tribunal finds were discussions that would have been afforded to any male employee who equally sought to amend their start time because of childcare arrangements. The Tribunal does not find the claimant to have been less favourably treated than a man in these circumstances. 118. The tribunal cannot find any basis to support the claimant's contention that she has been less favourably treated because of her gender, where she had been an active participant raising the subject as to children at the induction, or later on the 9 February 2018, where the claimant's children were the subject of the conversation relevant to the issue being discussed.