MRS R ASHTON v Marks and Spencer plc — 2020

The claimant worked part-time fixed hours because of childcare responsibilities. The respondent proposed that she work one weekend in five and adjust her remaining hours, including evenings or other times. The tribunal found that the weekend requirement was treated as non-negotiable and that the claimant was rostered to work the December 2018 weekend subject only to arranging swaps.

The tribunal found that the respondent gave the claimant an operational-resourcing explanation, but that the predominant reason for the proposed change was fairness among RLB staff. It concluded that the change was a detriment, that the claimant was treated less favourably than full-time comparators, and that her part-time status was the effective and predominant cause of the requirement to work weekends and some evenings. The tribunal was not satisfied that the respondent had shown objective justification.

For constructive dismissal, the tribunal found that requiring the claimant to change her hours without giving the real reason, failing to follow the relevant process, rejecting her suggested alternatives, and taking an inflexible approach amounted to a repudiatory breach of contract. It found that the claimant resigned in response to that breach and had not affirmed the contract. Remedy was awarded for the basic award, loss of earnings and pension loss to 3 March 2019, future pension loss to 19 December 2019, and loss of statutory rights.