D McDougall & J Gallacher Ms R Malcolm v Blackwood Homes and Care — 2024

The tribunal found that the claimant was employed on fixed days, initially Mondays and then Mondays and Fridays after a new contract in November 2021, and that the respondent knew of her childcare and caring constraints. It accepted that the respondent sought to move her onto a more flexible rota through a flexible working request process, that the claimant was excluded from rota discussions, that JR instructed the claimant and her colleagues to submit FWRs, and that the process was mismanaged. The tribunal also accepted that JR sent the 2 May 2022 email stating "I hate her". It held that the respondent’s conduct, taken together, breached the implied term of trust and confidence and amounted to a repudiatory breach. The claimant resigned on 16 June 2023 while on maternity leave, and the tribunal rejected the respondent’s argument that she had affirmed the contract by delay.

On the discrimination claims, the tribunal held that the refusal of the claimant’s FWR communicated on 12 September 2022 was principally because of her level of absence, including periods of pregnancy-related illness, and that this was unfavourable treatment within section 18 Equality Act 2010. It rejected the respondent’s case that there were no additional costs or that colleagues had threatened to resign. On the section 19 claim, the tribunal found that the PCP was the requirement to work the new rota with weekend working, that it was applied to the claimant when the new rota was implemented and her request was refused, and that women were at a particular disadvantage because of the childcare disparity. It accepted that the respondent’s aims were potentially legitimate, but held the PCP was not proportionate because the existing rota already covered the service needs and the asserted additional-cost rationale was unsupported.

At remedy, the tribunal awarded a basic award of £607.20 for the dismissal claim, calculated on three years’ service and gross weekly pay of £202.40. For discrimination loss it awarded six months’ net pay of £5,101.20, employer pension contributions of £156, and loss of statutory rights of £500, making £5,757.20, together with injury to feelings of £11,200 at the upper end of the lower Vento band and interest of £1,119.95 from 12 September 2022 at 8%. It rejected the respondent’s Polkey, contributory conduct, and mitigation arguments to the extent they would defeat the awards, but recorded that the claimant should have taken steps to seek alternative employment and expected she could obtain work within six months. The total award was £18,684.35.