Mrs S Hathaway v Blackpool Council — 2020

Mrs S Hathaway was a fitness instructor for Blackpool Council who challenged the review of exercise classes at Moor Park, Blackpool Sports Centre and Palatine. The respondent carried out the review because of low class capacity at BSC and Palatine, a wish to align the programme with customer needs and industry trends, and concerns that the timetable had become overcrowded. The tribunal found that the claimant’s Moor Park classes were generally well attended and that there was no evidence her performance was the reason for the reduction in hours.

On the constructive dismissal claim, the tribunal found that the claimant was not excluded from the staff working group meetings in November 2017 or February 2018, and that the meeting changes were not made to keep her out because of age. It accepted that the process was confusing and that the letter handed to her on 19 April 2018 was poorly worded, but held that reducing her hours under clause 5 of her contract was not itself a breach of contract. The tribunal also found that telling her the timetable changes were intended to attract a new, underrepresented demographic was an explanation of the review as a whole, not a criticism of her personally.

The tribunal accepted that the claimant felt intimidated at the one-to-one meeting and that communication about the timetable was poor, including the sending of the wrong September timetable on 12 July 2018. However, it found that Ms Worley tried to reassure her and make amends on several occasions, that the claimant was not promised the classes she later thought she would be teaching, and that the respondent’s conduct, viewed cumulatively and objectively, did not destroy or seriously damage mutual trust and confidence. Because there was no fundamental breach, the claimant was not entitled to resign and treat herself as constructively dismissed, and the unfair dismissal complaint failed with it.

On direct age discrimination, the tribunal accepted that the claimant, aged 57, was treated less favourably than the comparators Naomi, aged 26, and Liliana, aged 46, because her hours were cut while theirs were not. It nevertheless held that she had not proved facts from which age discrimination could be inferred, relying in part on the overall review data and rejecting the suggestion that the working-group email about wanting a better mix in terms of age showed discriminatory intent. If that hurdle had been crossed, the tribunal said it would in any event have found a non-discriminatory explanation: the timetable changes were made to improve the leisure centres’ performance. The indirect age discrimination complaint had been withdrawn during the hearing and was not determined on the merits.