Shop assistant was unfairly dismissed after being made to work Saturdays despite childcare issues, tribunal rules

Judge finds there was ‘no consideration’ by claimant’s manager of any less discriminatory ways to meet weekend staffing needs

Jan Schoonhoven/500px/Getty Images

A shop assistant was constructively unfairly dismissed after her manager told her to bring her daughter into work because she could not find childcare, a tribunal has found.

The South London tribunal heard that Ms J Keating, who was the sole carer for her eight-year-old child, was put at a disadvantage when she was asked to start working weekends because she could not afford childcare and did not have anyone who could look after them.

Judge Khalil concluded that while her employer, WH Smith Retail Holdings, had a legitimate need to schedule weekday workers to work on the weekend, there was “no consideration or exploration of any other less discriminatory way” of acheiving this, which amounted to indirect sex discrimination.

Caring responsibilities barring half of adults from seeking promotions, research warns

Ethnic minority workers more likely to quit over flexibility than white counterparts, research finds

Single parents twice as likely to be unemployed than coupled parents, research finds

Khalil added that permitting Keating to bring her daughter to the shop was a “red flag” that she had “obvious and significant” childcare issues, and found that her manager’s disregard for her childcare needs “despite several opportunities to address it” was likely to have destroyed or seriously damaged the relationship of trust and confidence.

As such, Keating’s resignation amounted to a constructive unfair dismissal.

Keating started her employment as a retail assistant at one of WHSmith’s London shops on 14 October 2015 on a 20-hour contract, plus a further eight hours when required.

Get more HR and employment law news like this delivered straight to your inbox every day – sign up to People Management’s PM Daily newsletter

The tribunal heard that at the end of July 2018 her manager, Mr Cruickshank, identified a business need to introduce a Saturday rota for the weekday staff to work one weekend day a month. This was because of the operational and budget restraints in the store caused by failing sales revenue.

This also coincided with the departure of university students who worked weekends only, and Cruickshank proposed to replace that labour with the weekday staff working flexibly on the rota.

The tribunal heard that on numerous occasions Keating tried to raise the issue of childcare. In September 2018, she tried to talk to Cruickshank to say she could not work the Saturday she had been put down for, but she was told she needed to sort out the shift herself and arrange a swap.

The following month, on 13 October 2018, the first Saturday Keating had been scheduled to work, she was permitted by Cruickshank to bring her daughter into the store, which the tribunal said was “a red flag to the claimant’s obvious and significant childcare issue”. 

Two days later, Keating explained to Cruickshank she had no one to look after her daughter on another Saturday. The tribunal heard Cruickshank was “frustrated” and told her if he allowed her not to work Saturdays “everyone else would want the same”.

Cruickshank told the tribunal he would have looked into the issue further, but Keating resigned. However, the tribunal noted a week passed between this conversation and Keating’s resignation.

Keating resigned via letter on 22 October 2018 with four weeks’ notice, and was signed off sick by her doctor for the entirety of her notice period.

The tribunal found that Cruickshank’s “disinterest” was rooted in his desire for the claimant to organise swapping shifts with her colleagues or simply to find a childcare solution herself, and said his failure to explore whether any other member of staff was prepared to work an extra Saturday was a “surprising neglect of his responsibility”.

The judge also noted that the requirement for members of staff to work one Saturday in four “put women at a particular group disadvantage when compared with men” because they are still statistically more likely to be primary child carers or single parents, disadvantaging them when it comes to working on Saturdays when schools are closed.

It concluded that there was either “casualness and/or lack of HR support for Mr Cruickshank, alternatively inadequacy of diversity training. There was no diversity and inclusion policy in the bundle or training records of managers.”

Danielle Oakley, associate director of HR advisory at Peninsula, said a key reason this case was successful was because the employer failed to look at ways in which the employee could be exempt from working weekends, such as hiring a new member of staff or sharing the workload.

“WH Smith may have avoided a tribunal claim and subsequent compensation payment had they taken proper time to investigate the employee’s concerns and consider ways to alleviate them,” she said.

Oakley added that allowing a child to be in the workplace created “a new level of obligation on employers”, and that were an accident to occur, the employer could be held liable for all illness or injury.

Keating was awarded £25,558 in compensation.

WH Smith has been contacted for comment.