Mrs Sharon Smith v The Vicarage Freehouse & Rooms Limited — 2019

Mrs Sharon Smith worked for The Vicarage Freehouse & Rooms Limited as a breakfast supervisor from 26 March 2017 until her resignation on 3 May 2018. The tribunal heard evidence about the terms agreed at interview, the later written statement of main terms, and the rota practices used at the Holmes Chapel site. It found that the claimant was initially engaged on 16 hours per week on a flexible basis, but that the parties' conduct soon varied the arrangement so that she worked variable hours rather than a fixed 16-hour pattern.

The principal successful claim was under regulation 5(1)(b) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. The tribunal found that the respondent had a practice of giving full-time employees their shifts first and then using part-time workers to fill gaps, which meant the claimant was given very limited opportunities to work 7am to 3pm shifts. It accepted Deborah Naidoo as the appropriate comparator because, although she was on a variable-hours contract, she was identifiable in the respondent's custom and practice as a full-time worker and her hours were generally consistent.

The tribunal rejected the respondent's case that the claimant's limited hours were explained by a general lack of availability. It found that some short-notice refusals by the claimant were for specific childcare or family reasons and did not prove that she had made herself generally unavailable for planned rota shifts. While it accepted that the respondent could legitimately organise staffing around quieter Mondays and Fridays and business demand, it found that the overall approach to allocating shifts was not proportionate and was not objectively justified.

The remaining claims were dismissed. The tribunal found no unauthorised deduction from wages, no unlawful indirect discrimination on grounds of sex, and no failure to permit rest breaks under the Working Time Regulations 1998. Remedy was not determined in this judgment; the tribunal directed the parties to prepare schedules of loss and listed the remedy issue for 14 January 2020.