Case 2602524/2019 · Employment Tribunal
Ms A Pullin v Neovia Logistics Services (UK) Limited — 2021
- Case reference
- 2602524/2019
- Decision date
- 25 March 2021
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Blackwell Members
- Venue
- Nottingham
- Panel members
- Ms D Newton, Mr A Greenland
Parties
2 namedClaimant
Ms A Pullin
Respondent
Key findings
Tribunal's reasoningMrs Pullin had been employed by Caterpillar Logistics Services and later transferred to Neovia under TUPE. Her working pattern had changed several times through flexible working requests, and by March 2018 she was working 27.75 hours per week on a term-time pattern. After a return-to-work interview in April 2019, Neovia told her in May 2019 that her hours would increase to 32.5 per week, with a 9:30 am to 4:30 pm pattern, because of increased workload and later cover needs linked to US facilities coming on line.
On constructive unfair dismissal, the tribunal held Neovia had no contractual entitlement to increase Mrs Pullin's hours unilaterally. It found the respondent had closed its mind to alternatives, including home working, job sharing, and a temporary increase in hours, and had not obtained competent advice. The tribunal concluded that this conduct breached the implied term of trust and confidence, that Mrs Pullin resigned in response to that breach, and that there had been no affirmation. It also held that any dismissal would have been unfair under s.98(4) ERA 1996 because capability was not made out and the respondent had not properly considered alternatives.
The flexible working complaint under s.80H(1)(b) ERA 1996 also succeeded. The tribunal found the refusal was based on incorrect facts: although it accepted that workload would increase and there was a time difference, there was no objective evidence that the request would damage customer demand, that work could not be reorganised among existing staff, or that performance would be harmed. The tribunal said Neovia had not properly explored other arrangements and relied almost entirely on Ms Morgan's evidence. The separate section 4 ERA 1996 claim succeeded by consent because the respondent had not issued an updated statement of changes when the claimant's role changed.
The indirect sex discrimination claim failed. The tribunal held that the pleaded PCP, requiring project lead roles to work full time, was not made out because Mrs Pullin was being required to work 32.5 hours per week rather than 37.5 hours. It added that the dispute was in substance about disability-related issues, but an associative indirect discrimination claim could not be brought under s.19 Equality Act 2010 on the pleaded sex discrimination basis. The judgment did not record any monetary remedy or compensation award.
Claims and outcomes
4 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Constructive dismissal | Constructive unfair dismissal under s.95(1)(c) ERA 1996 succeeded. The tribunal held Neovia had no right to unilaterally increase Mrs Pullin's contractual hours, had closed its mind to alternatives such as home working, job sharing, or a temporary increase, and had failed to take competent advice. It found a breach of the implied term of trust and confidence and held that Mrs Pullin resigned in response to that breach. The tribunal also said any dismissal would have been unfair under s.98(4) ERA 1996. | Upheld | — | — |
| Flexible working | The s.80H(1)(b) ERA 1996 flexible working complaint succeeded. Applying the approach in Commotion Limited v Rutty, the tribunal found the refusal was based on incorrect facts because there was no objective evidence to support detrimental effect on customer demand, inability to reorganise work, or performance concerns, and no proper investigation of alternatives had been carried out. | Upheld | — | — |
| Other | Section 4 ERA 1996 claim succeeded by consent. The tribunal noted that the respondent accepted Mrs Pullin had not been issued with a statement of changes reflecting later changes to her job title and duties, including when she returned from maternity leave in 2015 and when further changes occurred in 2017. | Upheld | — | — |
| Sex discrimination | The indirect sex discrimination claim failed. The tribunal held the pleaded PCP of requiring project lead roles to work full time was not made out because Mrs Pullin was required to work 32.5 hours per week, not 37.5 hours. It added that the case was in substance about disability-related issues, but an associative indirect discrimination claim could not be brought under s.19 Equality Act 2010 on the pleaded basis. |
Legal tests applied
7 references- s.95(1)(c) ERA 1996
- implied term of trust and confidence
- s.98(4) ERA 1996
- s.80G ERA 1996
- s.80H(1)(b) ERA 1996
- Commotion Limited v Rutty
- s.19 Equality Act 2010
Official outcome judgment PDF
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