Mrs Sharon Smith v The Vicarage Freehouse & Rooms Ltd: 1304340/2018

Case No: 1304340/2018 EMPLOYMENT TRIBUNALS Claimant Mrs Sharon Smith Respondent: The Vicarage Freehouse & Rooms Limited Heard at: Midlands West Employment Tribunal sitting at Stoke Combined Court Centre On: 21, 22 and 23 October 2019 Before: Employment Judge Cookson sitting with Mr Wagstaffe and Mr Pitt Representation Claimant: in-person Respondent: Mr Johnson (consultant) JUDGMENT It is the unanimous decision of this employment tribunal that: 1. The claimant was not subject to any unauthorised deduction from her wages and her claim in this regard is dismissed; 2. The claimant has not shown that she was subject to unlawful indirect discrimination on grounds of her sex and her claim in this regard is dismissed; 3. The claimant’s claim that she was subject to less favourable treatment under regulation 5(1)(b) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“PTWR”) is well founded and is upheld; 4. The claimant has not shown that she was prevented from taking rest breaks to which she was entitled under the Working Time Regulations 1998 and her claim in this regard is dismissed. 5. The issue of remedy will be determined before the same tribunal at 10am on 14 January 2020. 1 Case No: 1304340/2018 Reasons Background 1. Oral reasons for this decision were given at the hearing on 23 October 2019. The claimant, by an email on 28 October 2019, asked for written reasons relating to the decision on her PTWR claim and reasons for that part of our decision are given below. To help the parties understand those reasons the facts as found by the tribunal have been set out in some detail below. Issues 2. By a claim form presented on 25 September 2018, following a period of early conciliation from 31 July to 31 August 2018, the claimant brought the following complaints a unauthorised deduction from wages; b indirect sex discrimination c less favourable treatment under the PTWR; d refusal to permit the taking of rest breaks under the Working Time Regulations 1998. 3. In its response dated 25 October 2018, and amended on 5 April 2019, the respondent denied the claimant’s claims. The Law 4. The PTWR confer a right for part-time workers not to be treated by their employer less favourably than that employer treats comparable full-time workers, either as regards the terms of their employment contract (Reg 5(1)(a)); or by being subjected to any other detriment by any act, or deliberate failure to act, of the employer (Reg 5(1)(b)) if the reason for the treatment is that the worker is a part-time worker, and the treatment is not justified on objective grounds. The claimant brings a Reg 5(1)(b) claim in these proceedings. 5. The burden of proof lies on the claimant to show that less favorable treatment, on the balance of probabilities. The evidence 6. In reaching its decision the employment tribunal panel considered the following: 6.1 The documents in the 291 page bundle of documents, which we were referred to in evidence or in witness statements, and an additional document which had been prepared by the respondent’s representative and which was included in the bundle as page 292, and which I have marked and referred to below as R1. 6.2 A bundle of witness statements provided by the Respondent including its witness statements and that of the claimant which I have marked and 2 Case No: 1304340/2018 referred to below as R2. 6.3 We received oral evidence from the claimant to support her own case. For the respondent we heard witness evidence from a Jamie Reilly, the claimant’s line manager; b Deborah Naidoo, also a breakfast supervisor and colleague of the claimant and her comparator for the purposes of her part time workers claim; c Dominic Heywood, the respondent’s chief executive officer; d Susan Reilly, an employee of the respondent. Findings of Fact Background 7. The claimant was employed by the respondent as a breakfast supervisor from 26 March 2017 until her resignation on 3 May 2018. The Vicarage Freehouse and Rooms is a country pub, restaurant and hotel in Holmes Chapel, Cheshire, operated by the respondent as part of the umbrella brand Flat Cap Hotels. We have been told that the respondent employs around 40 staff at its Holmes Chapel site. 8. The claimant has worked in a number of hospitality environments. She has two young children and in 2017 she had decided to return to work on a part-time basis following a maternity break with her second child. At that time, she was still breastfeeding. The claimant tells us that she decided to approach the respondent on a speculative basis to see if they had any work available. At around the same time, the respondent had advertised for a breakfast supervisor on the “Indeed” website. The claimant spoke to Dominic Heywood, who gave evidence to us, and he had confirmed to her that they were indeed looking for staff. She emailed him a copy of her curriculum vitae and she was then invited to an interview with Robert Smith who was the hotel manager at the time. Mr Smith has subsequently left his employment with the respondent and was not a witness in these proceedings. 9. The claimant’s evidence was that at the interview with Mr Smith she explained that her husband was undergoing chemotherapy but that he was hoping to return to work soon. She explained that from the time that he returned to work she would only be able to work on Mondays and Fridays because these were his non-working days, for childcare reasons. Until then she could be flexible. She was looking for 16 hours work and a 7am to 3pm shift would be perfect to fit round her requirements looking after a 10 month-old baby and her older daughter who is at school. She had asked which days were the busiest and she had been told that Wednesdays and Sundays were generally the busiest so she had indicated that she would be happy to work those two days and could also help out on other days if possible. 3 Case No: 1304340/2018 10. It is relevant to note at this stage that unfortunately the claimant’s husband’s treatment and absence from work went on for much longer than had initially been expected and in fact he was not able to return to work until April 2018. Terms of the claimant’s employment 11. The claimant told us that Mr Smith said that ideally he would like to have her working full-time, but that he would accommodate the hours that she was looking for. The claimant provided her statutory right to work documents and completed the start of work form which can be found at pages 41 to 43 in R1. There is a section in that document for hours of work to be set out and the claimant told us that she filled in the form with Mr Smith there and he told her what to put in the job information section. She filled in 16 hours per week in the “hours per week” section, her job title as breakfast supervisor in the front of house department and that she would be paid £8 per hour. This document is described as being no more than the provision of personal information by the respondent, but it was their form and it was returned to, and processed by, the respondent. We had no evidence that the respondent ever contested what was set out in that document. It is material that there is no evidence that a statement of employment or contract of employment was provided to the claimant at this time. 12. Mr Heywood told us that he assumed that the claimant had been employed on a flexible basis and he was not aware that Mr. Smith had agreed anything else. We have no reason to doubt that evidence, but it also does not mean that the claimant’s evidence is incorrect. She gave a detailed and credible account of her meeting with Mr Smith and we have no reason to doubt that when she left that meeting with Mr Smith the claimant thought she had a very particular...