Miss L Hamilton v Represented by: Ms S Faheem - Solicitor The Niaroo Pub Company Limited — 2019

Miss L Hamilton had worked for The Niaroo Pub Company Ltd as bar staff since 2008. After maternity leave in 2012 she obtained a flexible working arrangement which fixed her Sunday shift at 12.30pm to 5.30pm, alongside other set weekly hours, because she needed to maintain 16 hours a week for tax credits and had childcare and college commitments. In 2018 the Glasgow pub began to suffer losses and management sought savings. The respondent asked her to change to a Sunday 2pm to 8pm shift, except when there was a function or a Celtic v Rangers match, and later offered alternative hours including some cleaning shifts. The claimant treated the change as a grievance and then resigned on 11 August 2018.

The tribunal held that the relevant contractual term was the claimant's fixed Sunday hours and that the respondent's unilateral change altered that express term. It accepted that the business had genuine financial pressure and that the respondent had consulted and explored alternatives, but it said those factors would have been relevant to an SOSR dismissal, which was not pleaded. Applying an objective approach, the tribunal found that changing the claimant from a fixed-hours Sunday shift to a shift that varied with business needs amounted to a fundamental breach of contract.

The tribunal therefore upheld constructive unfair dismissal because the claimant resigned in response to that breach. It also upheld breach of contract and awarded damages for failure to give notice of £1,456.44. Remedy was agreed between the parties for the dismissal claim, and the tribunal recorded a compensatory award of £3,529.13.