E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4105347/20205 Held at Aberdeen on & February & 20, & May and July 2022 Employment Judge J M Hendry Miss Y Pestano Tome v Assisted by Mr J McGregor, Ms A Uribe & Ms R Topping Interpreters MXCNHQ Ltd — 2022

The claimant, a Spanish national, began part-time work for MXCNHQ Ltd on 31 July 2017 and later received a contract dated 15 March 2019 stating a rate of £8.72 per hour and a 20-minute break entitlement for shifts over six hours. The tribunal accepted that she was initially well regarded, acted as an intermediary for Spanish-speaking staff, and became concerned when Marsha Clark became manager in late 2019 and introduced revised timekeeping through Deputy, including automatic 30-minute break deductions and a change to free food arrangements.

The tribunal found that the break changes were not discussed with staff in advance and that the claimant complained to Ms Clark and then to Mr Brandie, who did not respond in writing to her concerns. It accepted that the claimant was disappointed not to be promoted to manager, but held that the failure to promote her was not itself enough to establish discrimination or a breach undermining trust and confidence. In relation to the race claim, the tribunal found there was insufficient evidence of treatment because of race or nationality, and it rejected the suggestion that the facts supported an inference of racial discrimination. It also dismissed the harassment claim and the whistleblowing detriment claim.

The tribunal placed particular weight on the Covid period. It found that the claimant raised safety concerns, explained her asthma, and sought furlough or confirmation of what safety measures had been implemented. The tribunal rejected Mr Brandie's evidence that he had operated a dynamic risk assessment in the way he described, and found he did not explain the precautions said to be in place, did not furlough her, and did not rota her for work in early July 2020. It accepted that the claimant had asked for accrued holiday pay in June, but rejected the submission that this amounted to affirmation of the contract in the circumstances. The July rota omission was treated as the final straw, reviving earlier breaches and amounting to a repudiatory breach of the implied term of trust and confidence.

The tribunal held that the claimant was constructively dismissed and therefore unfairly dismissed. On remedy, it accepted a basic award of £599.82 based on two completed years' service and average gross pay of £299.91, plus £500 for loss of statutory rights. For compensation it allowed a three-month period from resignation, taking account of the claimant's later part-time work at La Lombarda, receipts of £216, £362.66 and £475.24, and the wider employment context during lockdown. The tribunal noted a £350 Scottish Welfare Fund payment but did not treat it as recoupable. The total monetary award was £3,644.84.