Mrs A Moss v Next Retail Limited T/A Next Online — 2020

Mrs A Moss worked for Next Retail Limited, most recently as a Letter Writer, from 22 June 1989 until her dismissal with effect from 3 May 2019. The case concerned a bonus scheme for Letter Writers based in part on returned customer survey responses, and whether the same minimum target of nine surveys for part-time and full-time workers was discriminatory or otherwise unlawful. The tribunal recorded that a remedy hearing would be listed after the liability decision.

On disability, the tribunal accepted that the claimant had a long-term mental impairment, anxiety, but found that it did not have a substantial adverse effect on normal day-to-day activities. It relied on evidence that she continued to read, write, socialise, exercise, care for her parents and manage daily routines, and concluded that she did not meet the Equality Act definition of a disabled person at the material time. Because of that finding, the claimant's disability discrimination complaints failed.

On the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, the tribunal held that the equal minimum target of nine survey responses was less favourable treatment for part-time workers because they had fewer working hours and therefore fewer opportunities to generate responses. It rejected the respondent's argument that the target was so low that there was no disadvantage, found the pro rata principle applied to pay but not to the target itself, and concluded that the equal target was not objectively justified. The claim under the PTW Regulations therefore succeeded.

On unfair dismissal, the respondent said the dismissal was for ill health capability. The tribunal found that the claimant's absence and dismissal were in substance connected to the unresolved bonus-scheme dispute and the respondent's refusal to adjust the scheme before dismissal, rather than a fair capability reason. It also held that, even if capability had been made out, the respondent had not acted within the range of reasonable responses because it dismissed without properly considering the occupational health recommendations and the requested adjustment, and the later offer to remove the minimum target came only after dismissal and without advance discussion.