Mrs B Fitzgerald v Casual Dining Group Limited — 2019

Mrs B Fitzgerald, a black African woman who was married, brought claims arising out of her employment at Las Iguanas Wembley from 2014 to 2017. At the start of the hearing she withdrew the TUPE claim and confirmed that she was not pursuing sex discrimination, and the tribunal recorded both as dismissed upon withdrawal. The tribunal also allowed in part a late amendment to relabel part of an earlier harassment complaint as victimisation, but excluded allegations that predated the 9 May 2016 email relied upon as the protected act.

The constructive dismissal claim failed because the tribunal found no repudiatory breach of contract. It held that there was no contractual right to a Christmas bonus, to holiday being authorised at a particular time, or to promotion to Deputy Manager, and it did not accept that the implied term of mutual trust and confidence had been breached. Even if there had been a breach, the tribunal found that Mrs Fitzgerald did not resign in response to it: the contemporaneous texts, resignation letter and social media posts showed that she had secured another job on better pay and that the relationship with Ms Friess was not broken down.

On direct race discrimination, the tribunal rejected each of the alleged acts. It found that the original pay increase offer on promotion was not less favourable treatment, that no one was paid extra for the social media lead role, that the 18 October 2016 management meeting issue did not amount to less favourable treatment, and that no salary review increase was due in November 2016. It also found that the claimant was progressing through a formal promotion process to Deputy Manager, that the Christmas bonus was not triggered because the Wembley restaurant did not meet the covers target, and that the Quarter 3 bonus was withheld because she had resigned. The complaint that the bonus issue was not handled properly also failed, with the tribunal finding no racial causation.

The indirect race discrimination claim failed because the tribunal found that the Respondent did have a formal promotion process, supported by the management competency development plan and the MIT programme, so there was no PCP of promoting staff without a formal and equitable process. The direct discrimination because of marriage/civil partnership claim failed on rotas and holiday: the tribunal accepted that any differences in shifts were driven by cover needs and the claimant's own requests, and that holiday refusals were generally based on operational reasons. The only potentially less favourable holiday refusal was in December 2016, but the tribunal found no causal link to marriage.

The indirect marriage/civil partnership claim also failed because the evidence showed that rota changes were made for individual circumstances and that holiday was not automatically refused in busy periods. The victimisation claim failed because the 9 May 2016 email about working conditions and flexible working was not a protected act under the Equality Act 2010. The breach of contract claim also failed because the pay review was not contractual and the bonus claims were not payable. No monetary award was made.