Member J McCullagh Tribunal Member D McFarlane Mr James Campbell v Forth Valley Health Board — 2020

Mr James Campbell was employed by Forth Valley Health Board as a part-time phlebotomist from 2 April 2018 until 27 July 2020. His complaint concerned the period from 2 April 2018 to 15 May 2020, when he worked weekday four-hour shifts from 07:30 to 11:30 without a paid morning break, while a full-time phlebotomist working 37.5 hours per week received a 15-minute paid complimentary morning break.

The Tribunal found that the claimant was a part-time worker and that the identified full-time comparator worked under the same type of contract and was engaged in the same or broadly similar work. It also found that another part-time worker, GC, took a Friday morning break while working a four-hour shift and that the respondent was aware of this but turned a blind eye to the break being taken. That finding was based on witness evidence, audit information for 3 to 7 February 2020, and the absence of any investigation by management after the issue was raised.

The respondent argued that any difference in treatment was based on shift length rather than part-time status. The Tribunal rejected that submission as circular and considered that shift length was relevant, if at all, to objective justification rather than to whether the treatment was connected with part-time work. It also held that, because all phlebotomists were granted a 15-minute morning break from 15 May 2020 in the same circumstances, no objective justification was made out for the earlier period. The complaint under Regulation 5 was therefore well-founded.

The claimant sought compensation calculated as 15 minutes for each weekday worked from 2 April 2018 to 15 May 2020, excluding sickness, holidays and weekends, at £10.54 per hour. The respondent accepted the arithmetic but disputed that the figure was just and equitable, without proposing an alternative. The Tribunal found the calculation had a rationale and awarded £956.