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Employment Tribunals Certificate of Correction

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Employment Tribunals Certificate of Correction RESERVED JUDGMENT Case No. 2404385/2016 EMPLOYMENT TRIBUNALS Claimant: Mr V Judic Respondent: JD Sports Fashion PLC CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 Under the provisions of Rule 69, the reserved judgment sent to the parties on 25 May 2017, is corrected as set out in block type at paragraphs 183-187. Employment Judge Ross Date 7 June 2017 SENT TO THE PARTIES ON 13 June 2017 FOR THE TRIBUNAL OFFICE Important note to parties: Any dates for the filing of appeals or reviews are not changed by this certificate of correction and corrected judgment. These time limits still run from the date of the original judgment, or original judgment with reasons, when appealing. 1 RESERVED JUDGMENT Case No. 2404385/2016 EMPLOYMENT TRIBUNALS Claimant: Mr V Judic Respondent: J D Sports Fashion PLC HELD AT: Manchester ON: 8, 9 and 10 May 2017 BEFORE: Employment Judge Ross Mr R W Harrison Mrs C A Titherington REPRESENTATION: Claimant: Mr G Turner, Solicitor Respondent: Ms L Amartey, Counsel JUDGMENT The judgment of the Tribunal is that: 1. The claimant's claim for unfair (constructive) dismissal is well-founded and succeeds. 2. The claimant’s claim in the alternative that he was automatically unfairly dismissed pursuant to section 104 of the Employment Rights Act 1996 is not well- founded and fails. 3. The claimant's claim that he suffered detriment as a consequence of making a flexible working request pursuant to section 80F of the Employment Rights Act 1996 is not well-founded and fails. 4. The claimant's claim for direct sex discrimination pursuant to section 13 of the equality Act 2010 is not well-founded and fails. 2 RESERVED JUDGMENT Case No. 2404385/2016 REASONS 1. The claimant was employed by the respondent as a Store Manager at one of their stores in the Trafford Centre, Greater Manchester. The claimant had worked for the respondent and its predecessor, Tessuti, from October 2010 up to his resignation. The claimant gave a letter of resignation to his manager, Colette Baxter, on Monday 1 August 2016, having telephoned her on 29 July to inform her he would resign the following Monday. It is not disputed that he worked his notice period. In his witness statement he stated that he worked until 2 September 2016. 2. The claimant brought claims for constructive dismissal pursuant to section 95 and section 98 of the Employment Rights Act 1996 (“ERA 1996”); a claim that he was automatically unfairly dismissed pursuant to section 104 of the ERA 1996 because the respondent had, he alleged, infringed a right of his which was a relevant statutory right, namely section 80F ERA 1996. He also alleged that he had suffered detriments for making a flexible working request pursuant to section 80F of the ERA 1996, and he alleged direct sex discrimination. 3. At a case management hearing before Employment Judge Howard on 9 January 2017 the issues between the parties were agreed. The List of Issues was adopted at the outset of the hearing, although the final straw and the period relevant to the constructive dismissal were clarified. The issues were agreed as follows: Was the claimant dismissed? (1) Was the claimant entitled to terminate the contract under which he was employed by reason of the respondent’s conduct (section 95(2)(c) ERA 1996)? Constructive Dismissal (2) Did the respondent commit a significant breach of implied and/or express terms in the claimant’s contract amounting to a repudiatory breach of it? (3) Did the claimant resign because of the breach? (4) The claimant asserts (paragraph 50 grounds of claim) that a number of acts or omissions amounted to a cumulative breach of the implied term of trust and confidence. The claimant relies upon those matters set out in his grounds of claim at paragraphs 5-44 of his claim form as the relevant acts or omissions. (5) The acts or omissions relate to the period commencing 28 January 2016 and the conduct of a new manager and included a negative response to flexible working requests and holiday requests, and related stress referred to in the claimant’s grievance of 13 May 2016 heard on 3 RESERVED JUDGMENT Case No. 2404385/2016 23 May 2016. In addition the claimant raised concerns on 7 May 2016 regarding unfair criticism of him and his team. (6) The final straw is referred to at paragraph 45 of the claim form: “During his week’s annual leave the claimant reflected on all the events and incidents concerning his employment (detailed above) since the start of the year. The final straw was the fact that Jenny Wildman had made allegations which were later proved to be false.” (7) The respondent denies that all of the alleged breaches took place (paragraph 2 grounds). (8) If so, did those activities individually or taken together constitute a breach of the claimant's contract? (9) Did those breaches either individually or taken together constitute a fundamental breach? (10) If so, did the claimant affirm the contract and/or waive the breaches? (11) If the claimant did not so affirm his contract or waive the breaches did he resign in response to the breach? (12) Was the reason or principal reason for the claimant's dismissal that he had alleged that the respondent had infringed a right of his which was a relevant statutory right (namely section 80F ERA 1996) and therefore automatically unfair (section 104 ERA 1996)? (13) If so, was his dismissal fair in all the circumstances? Detriment as a consequence of making a flexible working request – section 80F ERA 1996 (14) It is accepted that the claimant made a flexible working request within the statutory scheme. (15) Did the respondent engage in any of the activities set out above (i.e. paragraphs 5-44 of the claim form)? (16) If so, did they constitute a detriment? (17) If so, was this because the claimant had submitted (or proposed to submit) such a flexible working request and/or a related grievance by way of email dated 13 May 2016? 4 RESERVED JUDGMENT Case No. 2404385/2016 Direct sex discrimination – section 13 Equality Act 2010 (18) Did the respondent engage in any of the activities set out at paragraph 1 above? (19) If so, did the respondent treat the claimant less favourably than a hypothetical comparator, namely a female making requests because of childcare? (20) If so, was this because of the claimant's sex? 4. There was no reference in the List of Issues to a breach of the ACAS Code of Practice. There was no reference in the claim form to a breach of the ACAS Code of Practice. However, during the course of the hearing the claimant's representative stated that the claimant wished to allege a breach of the ACAS Code of Practice and made submissions to that effect at the end of the hearing. The respondent raised the matter that the matter had never been pleaded. At the submission stage they also raised failures on the claimant's part to comply with the ACAS Code. Witnesses 5. We heard from the claimant, from Mr K Ishii and Mr E Davis. Mr Ishii and Mr Davis were former employees of the respondent. Mr Davis was a former sales assistant and Mr Ishii a former supervisor. For the respondent we heard from Mr P Orange, Head of Fashion Retail; Ms C Baxter, Area Manager; Mr T Hall, Regional HR Manager; and Ms J Exford, Area and Operations Manager. Findings of Fact We find the following facts: 6. In order to focus its findings the Tribunal has grouped the matters at paragraphs 5-44 into the following topics: (1) The alleged requirement to work 9.00am to 6.00pm shifts – paragraphs 5, 6, 7 and 8. (2) Parental leave requests – paragraphs 9, 11, 14 and 29. (3) Annual leave – paragraphs 10, 13, 19, 20, 25, 26, 27 and 35. (4) Sick leave/illness – paragraphs 12, 15, 16, 17, 18, 21 and 22. (5) Flexible leave request – paragraphs 23, 28 and 33. (6) Grievance – paragraphs 24, 28 and 34. (7) The incident in the store on 14 June 2016 – paragraphs 30, 31 and 32. (8) The request to meet Colette Baxter following the incident on 14 June 2016 – paragraphs 36 and 37. 5 RESERVED JUDGMENT Case No. 2404385/2016 (9) The store audit – paragraph 38. (10) The attendance of Ms Wildman at the store – paragraph 39. (11) Investigation and disciplinary process – paragraphs 40, 41, 42, 43 and 44. (12) The alleged final straw – the false allegations of Ms Wildman. Requirement to work 9.00am to 6.00pm – paragraphs 5, 6, 7, 8 and 15 of the claim form 7. The Tribunal finds that on 28 January 2016 the claimant’s line manager, Jackie Grant, sent an email to him and the other store managers about store scheduling/rota. She informed the managers: “After a review of store scheduling/rotas it has been agreed that all stores use the same format. Please see below required changes. (To be implemented from Sunday 31/1).” 8. In relation to the manager/assistant manager it stated: “Work 8 hour shift, 9 hour per day, example 8-5/9-6/1-9 etc. Avoid scheduling SM/AM on early shifts (6.00am-3.00pm). Management to be scheduled in line with the demands of the business (i.e. where late opening is applicable).” 9. It is not disputed that the claimant had worked for the respondent’s predecessor since October 2010 at the same store, Tessuti. We rely on the claimant's evidence at paragraph 10 of his statement to find that for the previous four years the management early shift at his store was 8.00am to 4.30pm or 8.30am to 5.00pm with a 30 minute lunch break.
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