In person For the v Mr G Price — 2019

The claimant, Ms Dorothy Wood, worked as a Home Administrator at Borrage House Care Home. After a flexible working trial begun in August 2017, the respondent confirmed a working pattern with core hours and floating hours, but when Lucy Atkinson returned from maternity leave in April 2018 she required advance notice of when those floating hours would be worked. The tribunal found that this was a change to the practical operation of the arrangement, that the claimant ultimately agreed to it in her 4 May 2018 email, and that the arrangement remained subject to the needs of the business.

The constructive dismissal claim failed. Applying the s.95(1)(c) ERA 1996 analysis, the tribunal found no fundamental breach: the claimant had agreed the variation, worked within it for weeks, and only complained once the respondent began to challenge her performance and monitor her more closely. It found that she resigned because she was unhappy with that challenge, not because of any breach of contract. The tribunal also found that, on the agreed termination date of 23 November 2018, she would have had the requisite two years' service, but that did not assist her because constructive dismissal was not made out.

The disability discrimination claim, framed as direct discrimination because of disability by association with the claimant's father, was dismissed. The tribunal accepted that the respondent knew the father was disabled from the claimant's August 2017 flexible working request and meeting. It found, however, that Sarah Aitken's 31 July 2018 comments were about attendance, reporting and adherence to the agreed working pattern, not about the father's disability, and that the 9 August 2018 payment allegation was not proved on the evidence. The tribunal also rejected the proposed comparators and found no basis to infer that any difference in treatment was because of disability by association.

The indirect discrimination claims in relation to sex and age were also dismissed. The tribunal accepted that the respondent had imposed a provision, criterion or practice requiring advance notice of the claimant's floating hours, but found that women and people aged 45 to 55 would not be put at a particular disadvantage by that requirement, and that the claimant herself was not put at a particular disadvantage. In any event, it held that the respondent had shown a legitimate aim: needing to know when the claimant would be in work for resident family contact, planning and health and safety reasons, while still allowing emergency flexibility.

The victimisation claim failed because the tribunal did not accept that the claimant had told the respondent on or about 29 April 2018 that withdrawing flexibility was discriminatory. It accepted that the first protected act was the 31 July 2018 grievance alleging discrimination, but found that the subsequent criticism of performance, absence handling, contact attempts and pay deduction were explained by the claimant's attendance and work issues rather than by the grievance.