I Ashraf A McFarlane Karen Shakespeare v Ayrshire College — 2021

The claimant, Karen Shakespeare, brought a claim arising from a July 2019 COT3 agreement that settled earlier disability discrimination proceedings. She said appendix 3 to the COT3 entitled her to a paid lunch break and that non-payment amounted to an unlawful deduction from wages, a failure to make reasonable adjustments, and victimisation. The respondent accepted the word 'paid' appeared in appendix 3 but said it was a typographical error and that the lunch break was always intended to be unpaid.

On the wages claim, the tribunal found the settlement negotiations focused on the claimant's working pattern rather than any change to her contractual hours. It accepted that the claimant worked a 0.25 contract of 8 hours 45 minutes per week, that her legacy and national terms and conditions did not provide for a paid lunch hour, and that the first written proposal on 10 May 2019 referred to an unpaid lunch. The tribunal found the reference to a paid lunch in appendix 3 was an apparent clerical error, and alternatively that the surrounding evidence showed the parties had agreed 8 hours 45 minutes with an unpaid lunch. It therefore held that the total wages properly payable had been paid and dismissed the unlawful deduction claim under section 13 Employment Rights Act 1996.

For the reasonable adjustments claim, the tribunal accepted the respondent's submission that the alleged PCP was a failure to adhere to the COT3 agreement. It held this produced a circular argument, relying on Taiwo v Olaigbe and anor EAT 0254/12, and also found there was no evidence that the respondent had any PCP of failing to adhere to COT3 agreements. Even if there had been such a PCP, the tribunal said it would not have shown a substantial disadvantage compared with non-disabled persons, because the issue arose from the appendix 3 error rather than from disability. The claim was dismissed under section 20 Equality Act.

On victimisation, the tribunal accepted that the claimant had done protected acts by raising a grievance and earlier tribunal proceedings, and that not being paid for the lunch hour was the detriment relied upon. It found, however, that the reason for the non-payment was the mistaken use of the word 'paid' in appendix 3, which had gone unnoticed until the claimant raised it, and not because she had done any protected act. The tribunal therefore dismissed the victimisation claim under section 27 Equality Act. The tribunal concluded by dismissing the claim in full and recorded no monetary award.