Ms D Janusz, Solicitor For the v Respondent — 2023

The claimant worked for H & M Hennes & Mauritz UK Limited from 13 October 2015 until 20 October 2020 as a Sales Assistant at Store 777 in Milton Keynes. In early 2020 she moved to Bournemouth and wanted to transfer to one of the respondent's Bournemouth stores. The tribunal found that the respondent had two Bournemouth stores, that vacancies were advertised internally on Back Stage, and that a transfer was not guaranteed. It found that the claimant's own availability was limited to Monday to Friday mornings because of childcare and other responsibilities, whereas the Bournemouth vacancies required greater flexibility, including evenings and Sundays.

The tribunal accepted that there had been a failure in the respondent's internal system because the claimant's 21 February 2020 application for Store 614 did not reach the relevant managers or the area recruiter, so she was not called for interview. However, it found that this did not alter the overall position because the claimant had only applied for certain Store 614 vacancies and did not apply for the 8-hour or 12-hour vacancies, and there were periods when no relevant vacancies were advertised. It also rejected her evidence that she had made a further application in March 2020, finding that there were no vacancies at that time.

During lockdown the claimant was kept on furlough, then on extended leave, while the respondent and area HR monitored whether a Bournemouth transfer could be found. The tribunal found that the claimant later gave inconsistent information about her flexibility and that, when asked to arrange an interview for a 16-hour vacancy at Store 640, she did not return the calls made by Ms Jimenez. By 23 October 2020, after no transfer had been secured and the claimant could not return to Store 777, the respondent terminated her employment. The appeal was heard by Ms Franklin, who upheld the dismissal despite noting that the dismissal letter incorrectly stated that the claimant had failed an interview when she had not been interviewed.

The tribunal dismissed the unfair dismissal claim, holding that the respondent acted reasonably under s.98(4) ERA 1996 and that the decision fell within the band of reasonable responses. It also dismissed the breach of contract claim, finding that the claimant was not entitled to notice pay in the circumstances. The unlawful deductions claim was also dismissed because the claimant had not pursued it and produced no evidence to support it.