Store worker unfairly dismissed after being forced to work on Saturdays despite having no childcare
- Date: Wednesday 25th May 2022
A tribunal has found that a W H Smith store worker who was told by her manager to bring her child to work because she had no childcare was constructively unfairly dismissed.
The case serves as a clear reminder to employers that full consideration of all options must be explored before a working pattern that might disadvantage single parents is imposed.
In the case Ms Keating, who was the sole carer for her eight-year-old daughter, was put at a disadvantage by her manager who asked her to start working on Saturdays when she could not afford childcare and did not have anyone to look after her child. Ms Keating was on a 20 hour per week contract with a further eight hours when required.
The tribunal noted that W H Smith did have a legitimate need to schedule weekday workers on weekends but there was “no consideration or exploration of any other less discriminatory way to achieve this which amounted to indirect sex discrimination.”
The tribunal noted that in allowing Ms Keating to bring her daughter to the shop was a “red flag” because it clearly showed that she had obvious and significant childcare issues that the manager was choosing to disregard. It also found that the manager had not addressed the childcare issue and thereby damaged the relationship of trust and confidence.
Due to the managers actions (or lack thereof) it meant that Keating’s resignation did amount to a constructive unfair dismissal.
Ms Keating’s manager had identified a business need in July 2018 to introduce a Saturday rota for the weekday staff to work one weekend day a month because of operational budget restraints in the store. The requirement was exacerbated by student workers who only worked weekends returning to their studies. The manager proposed replacing that labour with the weekday staff working flexibly on a rota.
Ms Keating tried to talk to her manager and explain that she could not work on a Saturday she had been allocated but was told she needed to sort out the shift herself and arrange a swap. Then the following month on the Saturday Ms Keating was scheduled to work, she was permitted to bring her daughter into the store. Two days later Ms Keating explained to her manager she had no one to look after her daughter on another Saturday.
The manager told Ms Keating that if he allowed her to not work Saturdays “everyone else would want the same”. The manager made no attempt to find a solution and one-week later Ms Keating resigned.
The tribunal found that the manager was not interested in solving the issue. He failed to explore if other employees could work extra Saturdays. Instead, he was looking for the employee to organise shift swaps with colleagues or find her own childcare solution. The tribunal found the manager’s behaviour to be a “surprising neglect of his responsibility.”
The tribunal also noted that a requirement for staff to work one Saturday in four “put women at a particular group disadvantage when compared with men” because they are more likely to be the primary child carers or single parents which puts them at a disadvantage when it comes to working on Saturdays or when schools are closed.
Learning for employers
· Consider the impact to all employee groupings when proposing a change to patterns of working hours. The case emphasises the importance of 1-2-1 consultation with employees so that individual needs and limitation can be considered.
· Consider ways to prevent the imposition of working pattern on those with specific needs such as hiring new employees to cover gaps in schedules, increasing the sharing of workloads, seeking out volunteers to cover less popular hours or incentivising working at unsociable hours (or difficult to cover hours) such as offering a premium rate for working on a Saturday and Sunday.
Source: Gavin Parrott