In person For the v Respondent — 2021

The tribunal heard the case remotely and recorded significant concerns about the claimant’s credibility, preferring the respondent’s witnesses and contemporaneous documents where there was conflict. It found that the respondent had consulted widely before introducing a new rota for the telecare team in May 2018, including individual meetings, staff meetings and consultation with trade unions. The tribunal accepted that the new rota preserved the claimant’s contractual average of 35 hours per week over a 24-week cycle, that her gross pay did not reduce, and that the new arrangement removed the previous informal TOIL practice.

The age, race, and religion or belief discrimination claims all failed. On age, the tribunal rejected the alleged remarks about retirement and the alleged age-related comment about her mobile phone, and it found no evidence of a PCP requiring 11 hours of work without a break. On race, it held that the rota applied equally to all members of the team regardless of race, that Ms O’Dwyer and Mr Edoo were not true comparators because they had applied for and taken different roles, and that the alleged racist comments were not proved. The race harassment allegations were also rejected across the 11 incidents pleaded.

The religion or belief claims failed for similar reasons. The tribunal found that the claimant was not required to work all Sunday mornings, that she had the first three Sundays off under the new rota, and that the Christmas leave issue arose from her remaining holiday entitlement rather than her Christian faith. It rejected the alleged comments about Christians and the later text message said to have been sent by Mr Edoo. The religion or belief harassment allegations were dismissed because the underlying incidents were not accepted and did not amount to unwanted conduct related to religion or belief.

The victimisation claim failed even though the tribunal accepted that the claimant’s August 2018 grievance and later discrimination allegations were protected acts. It found, however, that she had not proved any detriment caused by those acts, and that the complaints she relied on as detriments had begun before the protected acts were made. The constructive dismissal claim also failed: the tribunal held that the claimant resigned on 8 April 2019 before any dismissal was carried out, and that the respondent had reasonable and proper cause for the steps it took, including suspension and disciplinary action, so there was no repudiatory breach of contract or failure of the implied term of trust and confidence.

The two live unlawful deduction claims were dismissed. The claim for full contractual sick pay from 26 November 2018 to 27 January 2019 failed because the claimant did not prove the amount due and the tribunal accepted that she had already exhausted her contractual sick pay entitlement, leaving SSP payable only. The claim that she was underpaid because she was allegedly required to work 44 hours per week also failed: the tribunal found that the rota changed the pattern of work but not the average weekly hours across the full cycle. No remedy was awarded.