Mr J Duffy - Counsel For the v Mr Johnson - Consultant — 2020

The claimant had worked as a permanent night care assistant, but her mandatory training had expired during maternity leave and the respondent required her to be re-inducted before returning to night work. The tribunal found that, although the contract did not specify day or night shifts, custom and practice meant she had usually worked nights subject to flexibility and day-time training, and that retraining was reasonable and necessary in the respondent’s regulated care setting.

The tribunal accepted that the respondent’s 10 May 2018 letter did not amount to a last straw or repudiatory breach. It found the correspondence showed an ongoing dialogue aimed at reaching a return-to-work arrangement, including a later proposal of four weeks’ day-time re-induction, paid hours, and the possibility of training at another home if needed. The claimant resigned on 17 May 2018 and confirmed that resignation on 22 May 2018, but the tribunal held she had not established constructive dismissal under the principles in Western Excavating and Woods, and it dismissed the unfair dismissal claim.

The notice pay claim for breach of contract was also dismissed because the tribunal had found there was no dismissal. On the discrimination claims, the tribunal rejected the maternity discrimination allegation under s.18(4) Equality Act 2010, finding that the requirement to work day shifts for retraining arose from outdated mandatory training and changes in the home, not because the claimant had taken maternity leave. It found the respondent treated her as it would any employee absent for an extended period and accepted the respondent’s evidence that the training could not realistically be done on night shifts at that home.

The indirect sex discrimination claim under s.19 Equality Act 2010 was dismissed. The tribunal accepted there was a day-time training requirement at Queen Elizabeth House because of staffing levels, and that the claimant had been offered the possibility of training at another home with higher night staffing. It held she had not shown that the provision put women at a greater disadvantage than men; even if it had, the respondent’s aim of ensuring staff were fully trained and safe to work was legitimate and the training arrangement was a proportionate means of achieving that aim. No monetary award was made because all claims failed.