Member P McCall Tribunal Member S Singh Ms A Monti v Represented by: Mr A Crammond -15 Barrister Marks and Spencer Group plc — 2020

The claimant was a section coordinator at Braehead and was the primary carer for her disabled mother. After an informal arrangement from 2016 that allowed day shifts and occasional voluntary late shifts, she was rostered for a weekly weekday late shift from November 2018 and again raised her caring position. She submitted a formal flexible working request on 8 March 2019, asking to work her existing contracted hours, but the request was refused on 5 April 2019. The respondent later imposed a contract change from 7 July 2019 requiring one weekday late shift each week and one Saturday every four weeks, and the claimant went off sick with work-related stress on 2 July 2019.

The tribunal dismissed the direct disability discrimination claim. It held that Angela Laird was not an apt comparator because the circumstances were materially different, including the absence of evidence about comparable caring responsibilities and the fact that Laird had not made a request herself. The tribunal found that the reason for the refusal of the flexible working request and the later contract change was Ms Stewart's insistence that all top-floor section coordinators do a weekly late shift, rather than the claimant's mother's disability. The offer to explore a customer assistant role was also not found to be less favourable treatment on the ground relied upon.

The tribunal upheld victimisation and, in the alternative, the section 47E ERA detriment claim. It found that the flexible working request and the grievance, which complained about the working-hours changes and the process, were protected acts. It held that changing the contract and stopping company sick pay were detriments, and that the contract change was carried out after the claimant challenged Ms Stewart's earlier position. It also found that company sick pay was stopped while the claimant was absent with work-related stress, without proper consultation or reconsideration, and that the making of the flexible working request materially influenced those decisions.

The indirect sex discrimination claim also succeeded. The tribunal identified the PCP as the requirement for section coordinators on the top floor to work a regular weekday late shift. It accepted that the PCP applied to male comparators and found that women were at a particular disadvantage because women are more likely than men to be carers for disabled or elderly relatives; the claimant herself was disadvantaged as the primary carer for her mother. Ensuring staffing cover was accepted as a legitimate aim, but the tribunal was not satisfied the respondent pursued that aim proportionately because it did not accept there was a real change in demand and considered the respondent had not adequately explored alternatives.

On remedy, the tribunal awarded £7,154.47 for loss of earnings and £11,000 for injury to feelings. It also awarded £1,109.56 interest, comprising £272.96 on the earnings loss and £836.60 on the injury-to-feelings award, making a total award of £19,264.03. The tribunal declined to make the requested recommendation that the claimant should continue on day shifts as in 2016, because of the COVID-19 context and the unknown effects on the parties, although it said it hoped the respondent would review how its policies affected different groups.