Case No 1307637/2023Venue Midlands WestHearing 15 August 2024
Between
Mr PanaClaimantPets at Home LtdRespondent
Before
Employment Judge HardingIn person for claimantMr Holloway (instructed by Counsel) for respondentDate 4 March 2025
JUDGMENT
The respondent’s application to strike out the claimant’s claim is refused. Signed by: JUDGMENT OF THE EMPLOYMENT TRIBUNAL ON A PUBLIC PRELIMINARY HEARING HELD AT Midlands West ON 15 August 2024
REASONS
An oral judgment and reasons having been delivered to the parties on 15 August 2024, and a written judgment and order sent to the parties on 22 August 2024, these written reasons are provided following a request from the respondent for written reasons made on 16 August 2024. The applications
BACKGROUND
[1]The claimant, who is no longer employed by the respondent, pursues a claim for breach of contract. The claim relates to changes that the respondent made to the claimant’s rest breaks. Following a case management preliminary hearing on 24 June 2024 the claimant made an application on 8 July 2024 to amend his claim to add what he termed a claim of victimisation. On 30 July 2024 the respondent objected to the application to amend and made an application for strike out of the claim on the basis that it had no reasonable prospect of success/in the alternative that the claimant be ordered to pay a deposit as a condition of the claim proceeding because it had little reasonable prospect of success. The respondent’s applications were made, essentially, on the basis that the changes made by it to rest breaks did not amount to a breach of contract and/or were permitted changes under the terms of the claimant’s contract.[2]We discussed the claimant’s application to amend first of all. I explained carefully to the claimant what the definition of victimisation was under the Equality Act, and in particular what was meant by a protected act. After I had explained this to the claimant he told me that he no longer wished to pursue his application to amend. Relevant background[3]No evidence was heard for the purposes of determining the respondent’s applications, save for evidence from the claimant in relation to his means. I make no findings of fact at this stage, therefore, other than in relation to means, I simply set out what the relevant background is asserted to be.3.1 The claimant worked as a warehouse colleague at the respondent’s Stafford fulfilment centre. He worked a full 7.5 hour shift. He, along with his colleagues, was issued with a contract of employment.3.2 Clause 5.2 of this contract stated that the claimant’s normal hours of work were 37.5 hours per week, excluding breaks. It was said that these will be worked on any five of seven shifts, including weekends over a 24-hour period, page 108. Clause 5.3 stated that times of work will usually be Tuesday to Saturday between the hours of 22:00 and 06:00, with such times being the start and finish times of the shifts.3.3 Clause 5.5 stated: “you are entitled to take an unpaid rest break totalling 30 minutes if you work a full 7.5 hour shift. In addition you are entitled to take 2 x15 minute paid breaks if you work a full 7.5 hour shift”, page 105.3.4 Clause 5.6 stated: “you may at times be required to change your working pattern to meet the needs of the business but you will be given as much notice as possible when this is required”.3.5 Clause 22.2 stated that: “the company reserves the right to make reasonable changes to any of your terms and conditions of employment within this agreement and within the colleague handbook”, page 117.3.6 The respondent asserts that congestion amongst warehouse colleagues at break times was causing a dip in productivity in the warehouse and consequently it decided to make changes to rest break times on a trial basis. The changes implemented were that employees working a full 7.5 hour shift would have one break of 45 minutes during the shift and then what was termed a further break at the very end of the shift of 15 minutes, which was implemented by way of employees being permitted to clock off from work 15 minutes early. Employees were still paid for these 15 minutes. The respondent asserts that there was some consultation with employees about this proposal. The proposal was put forward sometime in September and implemented on 6 October. The respondent also asserts that it was agreed that a four week trial period of the changes would be implemented, with a decision being made as to whether the changes would become permanent once the results of the trial were known.3.7 The claimant’s rest breaks were changed in line with this proposal. The clamant was very unhappy about this. He submitted a grievance and then resigned before the conclusion of the trial. Findings of fact: claimant’s means[4]From the evidence that I heard I make the following findings of fact:4.1 The claimant is currently working. He works part time earning approximately £300 a week after tax. His fiancée also contributes to the household income and they (the claimant’s fiancée) earns roughly £1,788 a month after tax. The claimant is also a student and benefits from a maintenance loan which pays him approximately £3,300 every three months.4.2 His principal outgoings are rent of £880 a month, general bills of roughly £200 a month, car insurance, petrol and road tax in total being about £250 a month and food which costs about £300 a month. He is paying off £30 a month on credit cards. There is disposable income left over most months of at least £600. The claimant does not have any savings. Submissions[5]The respondent submitted that the claimant’s claim was hopeless. Clause 5.5, it was submitted, said nothing about when during the working day breaks were to be taken and accordingly it remained within the respondent’s discretion to direct when during the shift employees took a break. The contractual entitlement was to one 30 minute unpaid break and two 15 minute paid breaks and under the terms of the trial employees still received this in the form of one 45 minute break (comprising the 30 minute break and the first of the 15 minute breaks) and then a 15 minute break at the very end of the working day.[6]In any event, it was said that this was only the initial hurdle for the claimant. Clause 5.6 permitted the respondent, under the terms of the contract, to make changes to employees’ working patterns to meet the needs of the business. Clause 22.2 permitted the respondent to make reasonable changes to any terms and conditions of employment. Provided there was nothing in the exercise of the respondent’s discretion that was capricious or arbitrary, and that it was not a decision that no reasonable employer would have made, these clauses, it was submitted, permitted the respondent to make changes to the contract, including those that were made in relation to rest breaks.
THE ISSUES
[7]Mr Pana submitted that guidance from both the Health and Safety Executive and ACAS states that a worker is entitled to an uninterrupted break of 20 minutes when daily working time is more than six hours and that the guidance goes on to say that it should be a break in working time and should not be taken either at the start, or at the end, of the working day. He stated that the proposed pattern was one 45 minute break in the middle of the shift and then one 15 minute break at the end of the last hour of the shift, meaning that employees did not benefit from the last break as it was at the every end of the working day. He submitted that clause 22.2 of the contract permitted the company to make reasonable changes and that the changes applied in relation to breaks were unreasonable not least because they were in breach of the guidance mentioned above.
The Law
[8]Rule 37(a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 states that all or part of a claim or response may be struck out on the grounds that it is scandalous or vexatious or has no reasonable prospect of success. Rule 39 states in so far as it is relevant that:(1) Where … the tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party ... to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.(2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.
THE RELEVANT LAW
[9]The operation of the power to strike out requires a two stage test;(1) has one of the grounds of strike out in Rule 37 been established on the facts?(2) if so is it just to proceed to strike out in all the circumstances, Hassan v Tesco Stores Ltd UKEAT/0098/16. The second stage of this exercise under Rule 37(1) is important. It is a fundamental cross check to avoid the bringing to an end prematurely of a claim that may yet have merit, paragraph 19, Hassan. As was explained in Hassan, paragraph 17, the way in which Rule 37 is framed is permissive. It allows an Employment Judge to strike out a claim where one of the five grounds are established, but it does not require him or her to do so.[10]The striking out of a claim is a summary determination of the merits without hearing evidence. It denies the claimant the opportunity for evidence to be heard and for it to be tested at a full hearing. It is well-established that striking out a claim of discrimination is considered to be a draconian step which is only to be taken in the clearest of cases: see Anyanwu & Another v South Bank University and South Bank Student Union [2001] ICR 391. The applicable principles were summarised more recently by the Court of Appeal in the case of Mechkarov v Citibank N.A [2016] ICR 1121. In Mechkarov, it was said that the proper approach to be taken in a strike out application in a discrimination case is that:(1) only in the clearest case should a discrimination claim be struck out,(2) where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence,(3) the Claimant’s case must ordinarily be taken at its highest,(4) if the Claimant’s case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out; and(5) a Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts. That said, as the EAT noted in Cox v Adecco & Ors UKEAT0339/19, paragraphs 32 and 33: That is not to say that these cases mean that there is an absolute bar on the striking out of such claims. In Community Law Clinics Solicitors Ltd & Ors v Methuen UKEAT/0024/11, it was stated that in appropriate cases, claims should be struck out and that “the time and resources of the ET’s ought not be taken up by having to hear evidence in cases that are bound to fail.”[11]Of course, this is a breach of contract claim not a discrimination claim, and there is not the same degree of public interest in ensuring that claims of this nature are fully examined on their merits. But it has been explained that the same general approach to that set out above applies to other types of claim, certainly where there is a core of disputed facts. See for example, Tayside Public Transport Co Ltd (t/a Travel Dundee) v Reilly [2012] IRLR 755 CS, which was a claim for unfair dismissal. In this case the EAT noted that in almost every case the decision in an unfair dismissal claim is fact sensitive, and it was further observed that, paragraph 30: where the central facts are in dispute, a claim should be struck out only in the most exceptional circumstances. Where there is a serious dispute on the crucial facts, it is not for the tribunal to conduct an impromptu trial of the facts. ….. There may be cases where it is instantly demonstrable that the central facts in the claim are untrue; for example where the alleged facts are conclusively disproved by the documents….. But in the normal case where there is a crucial core of disputed facts it is an error to strike out.[12]See also White v HC-One Oval Ltd [2022] IRLR 526. This was, likewise, an unfair dismissal claim. Much of the guidance in this case focused on the fact that it is for the employer to prove a potentially fair reason for dismissal, and where that is in dispute that means it would rarely be appropriate for that matter to be determined other than after consideration of the evidence at a full merits hearing. That, of course, is not the case here. The burden would be on the claimant to establish a breach of contract. But general guidance was also provided; Paragraph 23; “More generally, a claim should generally not be struck out when the central facts are in dispute, Tayside Public Transport Co Ltd t/a Travel Dundee v Reilly [2012] IRLR 755, and, ordinarily, a claimant's case should be taken at its highest and strike out should only be used in the clearest cases, where it is plain and obvious, Mechkarov v Citibank NA [2016] ICR 1121.”
FINDINGS OF FACT
[13]The principles applicable to the tribunal’s power to make a deposit order were summarised recently in the case of Arthur v Hertfordshire Partnership University NHS Foundation Trust UKEAT/0121/19 as follows;(1) the test for making a deposit order is distinct from the no reasonable prospect of success test which it is necessary to establish prior to striking out a claim, see Wright v Nipponkoa Insurance (Europe) Ltd UKEAT/0113/14,(2) the purpose of the deposit order is to identify at an early stage those claims with little reasonable prospects of success and to discourage the pursuit of those claims by requiring the sum to be paid and by creating a risk of a costs order being made, Hemdan v Ishmail [2017] IRLR 228,(3) when deciding whether to make a deposit order a tribunal is not restricted to considering purely legal questions, Wright v Nipponkoa Insurance [2014] UKEAT/0013/14. The tribunal is entitled to have regard to the likelihood of a party being able to establish the facts essential to its case. The tribunal, in doing so, is entitled to reach a provisional view as to the credibility of the assertions being put forward by a party,(4) the purpose of the deposit order is not to make it difficult to access justice or obtain a striking out of the claim by the back door.[14]In Hemdan v Ismail UKEAT/0021/16, it was explained that the level of a deposit should not be set so high that the Claimant cannot realistically comply with it, as this would impede access to justice. Deposit orders (even if set at a nominal amount) will continue to operate to discourage the pursuit of the claims by creating a risk of costs ultimately if the claim fails.
Conclusions
[15]There is, for the avoidance of doubt, no possible issue that arises in relation to an asserted breach of contract based on terms that may be implied into contracts of employment by way of the requirements of the Working Time Regulations; even the revised arrangements were more generous than the 20 minute uninterrupted break required under the Regulations.[16]Absent clauses 5.6 and 22.2, the claimant would, I conclude, have reasonably good prospects of establishing that the change implemented by the respondent was in breach of clause 5.5. That is because a rest break, in my view, is likely to be construed as meaning a period of time, during the working day, when the employee can take a break and rest from their work (so far as I know this was not a term that was defined in the contract itself, certainly I was not taken to any such definition). Such an interpretation would, after all, be consistent with the guidance provided by ACAS and the Health and Safety Executive.[17]In this instance what the respondent did in relation to the second 15 minute paid break is allow employees to leave work 15 minutes early at the end of their shift. That, in reality, did not provide an employee with a period of 15 minutes rest during their working day; it did not enable the employee to stop work, take a 15 minute break, and then return to work. It was implemented in such a way as to enable employees to leave work 15 minutes early – i.e. it was more akin to a change to the time that the working day ended. If that is the interpretation adopted then it follows, absent clauses 5.6 and 22.2, that the claimant would have good prospects of proving a breach of clause 5.5, because, on this interpretation, the second 15 minute paid break was not provided to the claimant under the revised arrangements.[18]But, as Mr Holloway correctly pointed out, that is not the end of the matter. Clause 5.6 enables the respondent to change employees working patterns to meet the needs of the business on as much notice as possible.[19]It seemed to me that whether this clause permitted the relevant changes to be made will depend on two things; firstly, how is the phrase “working pattern” to be construed? Does this refer to the hours of work, days of work and shift patterns set out at clauses 5.2 and 5.3, or does it also include the provisions in relation to rest breaks set out at clause 5.5? Whilst I think it likely it would be construed to cover rest breaks it does need to be remembered that a flexibility clause of this nature will be interpreted restrictively, and consequently it cannot, in my view, be said that the construction that the claimant will have to contend for is an implausible or hopeless construction, even if it is an unlikely one.[20]Secondly, and more significantly, under the terms of this clause any changes to working pattern must be made with as much notice as possible, “you will be (my emphasis) given as much notice as possible when this is required”. Whether as much notice as possible was given will be a fact sensitive issue which will require all of the evidence to be heard. I do not know the exact chronology of events, that was not explained to me for the purposes of this hearing, but I was told, as set out above, that the proposal was put forward sometime in September and implemented on 6 October. Those timescales, it seemed to me, are not so obviously long that it can be said that the claimant has no or little reasonable prospect of establishing that the changes were not implemented on as much notice as possible.[21]As to clause 22.2, it is without doubt that, on the face of this clause, the respondent has reserved to itself a very wide power to make changes to any terms and conditions of employment. However, the right is to make “reasonable changes”. What is reasonable will be a highly fact sensitive issue. Once again, this will be construed restrictively given the width of the clause. The claimant, moreover, disputes that the changes were reasonable, his case is that they were unreasonable because they effectively deprived employees of one of their rest breaks and were implemented in breach of ACAS and Health and Safety guidance. That is a core dispute of fact. For these reasons I do not conclude that it can be said that the claimant has no reasonable prospect of establishing that the changes made fell outwith the terms of this clause.[22]However, the clause is wide and it is clearly drafted (save as to what is meant by reasonable). The respondent also asserts facts, some of which at least I understood not to be disputed by the claimant, which if proved may well lead a Tribunal to conclude that the changes made were reasonable. In particular; that there were good business reasons for making the changes, there was consultation about the changes, and the changes were implemented only on a trial basis on the agreement and understanding that whether the changes would be made permanent would be reviewed once the results of the trial were known. For these reasons I conclude it can be said that the claimant has little reasonable prospect of establishing that the changes made to rest breaks fell outside of the terms of this clause, and accordingly I ordered the claimant to pay a deposit of £250 as a condition of this claim proceeding, see the separate order.[1]The Claimant presented a claim form on 29 November 2023 bringing a complaint of breach of contract in relation to changes made by the Respondent to break arrangements for employees at its Stafford Fulfilment Centre. The Claimant maintained that the changes were a breach of his employment contract.[2]A preliminary hearing was held before Employment Judge Childe on 24 June 2024 (First PH) at which various case management orders were made. A public preliminary hearing was held before Employment Judge Harding on 15 August 2024 (Second PH) at which the Respondent’s application for a deposit order was granted and the Claimant was ordered to pay a deposit of £250.[3]Employment Judge Harding's reasons for granting the deposit order were that the Claimant had little prospect of succeeding with his claim because the changes to break arrangements were likely to be considered to be changes that were authorised by the terms of the Claimant’s employment contract.[4]On the final day of a two day hearing held on the dates above, the Tribunal gave oral judgment dismissing the Claimant’s claim for breach of contract and provided its reasons. The Tribunal found that the changes to break arrangements by the Respondent were authorised by clause 22.2 of the Claimant’s employment contract.[5]If the Tribunal decides against a Claimant for the same reasons for which a deposit order is granted, it must consider whether to award costs unless it has been shown that the Claimant did not act unreasonably in continuing to pursue his claim (rule 40(7)(a) of the ET Rules). Furthermore, Mr Holloway made an application for costs at the conclusion of the hearing under rule 75(1) of the ET Rules on the basis of rules 40(7)(a) and 74(2)(a) of the ET Rules).[6]The Respondent produced a nine page bundle of documents in respect of its costs application (Costs Bundle). The Tribunal also had before it the bundle that had been used during the two day hearing (Bundle).[7]The Tribunal heard oral submissions from both parties and the hearing was adjourned for a reserved judgment on the issue of costs and reasons to be provided to the parties in writing.
THE ISSUES
[8]The issues to be determined by the Tribunal were:8.1 Has the Tribunal decided against the Claimant in his claim for breach of contract for substantially the same reasons given in the deposit order dated 15 August 2024 (rule 40(7) of the ET Rules)?8.2 If so, has it been shown that the Claimant has not acted unreasonably in pursuing his claim for the purpose of rule 74(a) of the ET Rules?8.3 Should, in the Tribunal’s discretion, a costs order be made against the Claimant?8.4 If so, how much should be awarded? THE RELEVANT LAW[9]References to rules in this Judgment are to the rules under The Employment Tribunal Procedure Rules 2024 (ET Rules).[10]The relevant part of rule 40 provides: “(7) If the Tribunal following the making of a deposit order decides the specific allegation or argument against the depositor for substantially the reasons given in the deposit order –(a) the depositor must be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 74 (when a costs order or a preparation time order may or must be made), unless the contrary is shown, and(b) the deposit must be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit must be refunded. (8) If a deposit has been paid to a party under paragraph (7)(b) and a costs order or preparation time order has been made against the depositor in favour of the party who received the deposit, the amount of the deposit must count towards the settlement of that order.”[11]The relevant part of rule 74 provides: “(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing. (2) The Tribunal must consider making a costs order or a preparation time order where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted, […]”[12]The relevant part of rule 76 provides: “(1) A costs order may order the paying party to pay— (a) the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; […]”[13]Rule 82 provides: “In deciding whether to make a costs order, preparation time order, or wasted costs order, and if so the amount of any such order, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.”[14]If a party’s conduct falls within rule 74(1)(a), the Tribunal must then go onto ask whether it is appropriate to exercise its discretion in favour of awarding costs against that party. It is only when these two stages have been completed that the Tribunal may proceed to the third stage, which is to consider the amount of any award.[15]Gee v Shell UK Limited [2003] IRLR 82. The Court of Appeal confirmed that that costs are the exception rather than the rule and that costs do not follow the event in Employment Tribunals.[16]Lodwick v Southwark London Borough Council [2004] ICR 884. The Court of Appeal also confirmed that the purpose of an award of costs is to compensate the party in whose favour the order is made, not to punish the paying party.[17]Oko-Jaja v London Borough of Lewisham EAT/417/00. Costs warnings are relevant to deciding whether to award costs.[18]Kopel v Safeway Stores plc [2003] IRLR 753. A Claimant will not be liable for costs simply because he or she has rejected an offer to settle the claim and is eventually awarded less than that offer or even nothing at all. However, a Claimant’s refusal of an offer to settle a claim is a factor that the Tribunal can take into account in deciding whether to award costs.[19]Power v Panasonic (UK) Ltd EAT/0439/04. If a party rejects an offer due to a “unrealistically optimistic” understanding of their claim (in that case, the Claimant’s schedule of loss), the Tribunal is entitled to find that the Claimant had conducted the proceedings unreasonably.[20]AQ Ltd v Holden [2012] IRLR 648. The tests in rule 74(2) of the ET Rules are the same whether a claimant is or is not professionally represented, but the application of those tests should take this factor into account. A tribunal should not judge a litigant in person by the standards of a professional representative. However, lay people are not immune from orders for costs. Some litigants in person are found to have behaved unreasonably even when proper allowance is made for their inexperience and lack of objectivity.[21]Under article 10 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994, the maximum payment that the Tribunal can award for breach of contract is £25,000. SUBMISSIONS Respondent’s submissions[22]The Respondent submitted that, due to the Tribunal finding the changes to the Claimant’s break arrangements were authorised by the Claimant’s employment contract and this being the same reason for which Employment Judge Harding concluded that the Claimant had little prospects of success when granting the deposit order at the Second PH, the Claimant must be treated as acting unreasonably under rule 40(7)(a) of the ET Rules because there are no grounds for finding that the contrary can be shown.[23]In relation to the Claimant acting unreasonably, the Respondent relied on and referred to correspondence sent by the Respondent to the Claimant as follows:23.1 On 13 December 2023, the Respondent warned the Claimant that he had no prospects of success on the basis that the Respondent was permitted to make changes to break arrangements. The letter went on to explain that the Tribunal has the power to make a costs order where a claim has no prospects of success, that the Respondent was giving the Claimant the opportunity to withdraw his claim within a one week deadline, and that if he continued with his claim and was ultimately unsuccessful the Respondent would consider that to be unreasonable conduct and reserved the right to seek recovery of its legal costs. In the letter the Respondent advised the Claimant to seek legal advice about the letter and his claim. See pages 1 – 3 of the Costs Bundle.23.2 On 23 August 2024, after the deposit order had been granted, the Respondent wrote again to the Claimant. The letter noted that the Claimant’s schedule of loss (pages 212 – 216 of the Bundle) stood at over £85,000 and included losses which could not be recovered as part of a breach of contract claim (including a basic award and a compensatory award). It also reminded the Claimant that the deposit order had been granted at the Second PH because his claim had little prospect of success. The letter went on to re-iterate that the Tribunal has the power to make a costs order and highlighted that the deposit order would include a notice making the Claimant aware that he would be at risk of costs if he pursued his claim. The Respondent again offered not to pursue a costs order if the Claimant withdrew his claim within a one week deadline and again advised the Claimant to take legal advice about the letter and his claim. See pages 4 & 5 of the Costs Bundle.23.3 On 11 February 2025, after the parties had exchanged witness statements, the Respondent emailed the Claimant explaining that the Respondent did not consider the Claimant would succeed with his claim and that, even if he did, the Respondent did not consider the Claimant would be paid any compensation. Among other things, the Respondent reminded the Claimant of the reasons for the deposit order being granted at the Second PH and set out in detail why the Claimant was not entitled to claim the losses set out in his schedule of loss (pages 212 – 216 of the Bundle) as part of a breach of contract claim, namely a basic award, compensatory award, an injury to feelings award, and other losses flowing from his resignation. In the email, the Respondent offered to settle the claim without admission of liability, via ACAS, for £3,000 in order to save “the time, cost and effort of attending the trial next month”. The Respondent stated that this was more money than the Claimant would receive even if he were to win his claim. The Respondent again explained about the Tribunal’s power to award costs and urged the Claimant to discuss the contents of the email with ACAS.23.4 On 14 February 2025, ACAS emailed the Respondent to say that the Claimant rejected the Claimant’s offer and would be prepared to accept £60,000 in settlement of his claim.[24]Mr Holloway submitted that the Respondent had incurred over £21,000 plus VAT in legal costs since the letter dated 13 December 2023 and over £11,138 plus VAT in legal costs since the letter dated 23 August 2024.[25]Mr Holloway also submitted that, as well as warning from the Respondent, the Claimant had had warning from the Tribunal as follows:25.1 At the First PH, the Claimant was provided with case management orders which encouraged him to seek legal advice and gave him information about how to obtain free advice (see page 56 of the Bundle);25.2 At the Second PH, Employment Judge Harding explained in clear terms that the Claimant had little prospect of succeeding. The Respondent submitted that this was another opportunity for the Claimant to consider very carefully whether to continue with his claim and that it is significant that he had been warned about that by an independent Employment Judge.[26]Mr Holloway submitted that the Claimant had acted unreasonably even without the deposit order having been granted. With the deposit order having been granted and the Claimant having ignored the Tribunal’s view that his claim had little prospect of success, Mr Holloway submitted that this added weight to the fact that the Tribunal should exercise its discretion to make an award for costs.[27]Mr Holloway concluded his submissions by explaining that, having taken into account the Claimant’s means, the Respondent was seeking to recover a reduced figure of £4,500, which represented Counsel’s brief fee incurred by the Respondent. Claimant’s submissions[28]The Claimant submitted that there were paragraphs in the deposit order (page 90 of the Bundle) and the written reasons for the deposit order (page 114 of the Bundle) which stated he had reasonably good prospects of arguing that:28.1 he had the contractual right to certain breaks in his employment contract;28.2 finishing work 15 minutes early at the end of a shift was not a rest break; and28.3 the changes made by the Respondent were a breach of his contract.[29]He also referred to the reasons for the deposit order setting out that his employment contract only allowed the Respondent to make reasonable changes and that as much notice of the change as possible would be required (pages 114 and 115 of the Bundle). The Claimant submitted that the changes made by the Respondent were not reasonable and that one of the breaks had been removed because finishing early is not a break, and on that basis he moved forward with the case.[30]The Claimant submitted that he considered the costs warning letters from the Respondent in December 2023 and August 2024 to be threats from the Respondent. He also submitted that he considered the offer of settlement from the Respondent in February 2025 to mean that he had a chance of winning.[31]In answers to questions from the Tribunal, the Claimant confirmed that:31.1 He continued with his claim after receiving the communications from the Respondent referred to above because he considered the changes to the break arrangements were a breach of contract;31.2 He did not seek any legal advice after being encouraged to do so in the case management orders from the First PH. This was because he considered that the Respondent was in breach of the Working Time Regulations and certain health and safety regulations, although the Claimant did not take any legal advice on those points;31.3 Notwithstanding the deposit order stating he had little prospects of success, he believed that the change to the breaks was a breach of contract;31.4 He understood that he was not able to bring a claim for a number of the losses set out in his schedule of loss as part of a breach of contract claim; and31.5 The findings of fact about the Claimant’s means set out in the written reasons for the deposit order dated 30 August 2024 (i.e. that he has disposable income left over most months of at least £600 – see page 110 of the Bundle) remained accurate. CONCLUSIONS Has the Tribunal decided against the Claimant for substantially the same reasons given in the deposit order (rule 40(7))?
CONCLUSIONS
[32]The Tribunal decided that there was no breach of contract by the Claimant because the changes to break arrangements were authorised under clause 22.2 of the Claimant’s employment contract. It decided that:32.1 the language of clause 22.2 was clear and gave the Respondent the right to make changes to the clause which set out the break arrangements; and32.2 the changes made by the Respondent were reasonable (as required under clause 22.2) for a number of reasons.[33]The deposit order refers to clause 22.2 of the employment contract and sets out at paragraph 5 that the Claimant had little prospect of success because the changes to break arrangements were likely to be considered changes that were authorised by the terms of the contract. See page 91 if the Bundle.[34]The Tribunal therefore decided against the Claimant for substantially the same reasons given in the deposit order and the Tribunal finds that the first part of rule 40(7) is satisfied. Has it been shown that the Claimant has not acted unreasonably in pursuing his claim for (rule 40(7)(a))?[35]Given the Tribunal’s finding above, rule 40(7) states that the Claimant must be treated as having acted unreasonably in pursuing his claim unless the contrary is shown, i.e. unless the Claimant can overturn that presumption by showing that he acted reasonably in continuing with his claim.[36]The Tribunal is not persuaded that the Claimant acted reasonably in continuing with his claim. The Claimant was warned by the Respondent (three times) and the Tribunal (in the deposit order) that his claim had little prospect of success. He was also positively encouraged by the Tribunal after the First PH to seek legal advice, with information about where to obtain free legal advice, but failed to do so.[37]The Tribunal does not accept that the correspondence from the Respondent on 13 December 2023 and 23 August 2024 was a threat, as submitted by the Claimant. The letters were proportionate, clearly and simply setting out why the Respondent considered the claim would not succeed and the Tribunal’s power to award costs.[38]Furthermore, the Tribunal does not accept that it was reasonable for the Claimant to conclude that the Respondent’s settlement offer indicated that it considered the Claimant to have a chance of winning. Parties offer to settle litigation for numerous reasons, and the Respondent clearly set out in its offer that there were benefits for both parties if the claim settled.[39]Consequently, under rule 40(7)(b) of the ET Rules the deposit of £250 must be paid to the Respondent. Should a costs order be made against the Claimant?[40]Having found that the Claimant’s conduct falls within rule 74(2)(a), the Tribunal must then consider whether it is appropriate to exercise the discretion in favour of awarding costs against him.[41]In considering whether a costs order should be made, the Tribunal concludes that it is appropriate to exercise its discretion to award costs. The Tribunal is aware of the authorities regarding costs being the exception rather than the rule, but finds that this case is an exceptional case and merits an award of costs for the following reasons:41.1 The Claimant was warned numerous times by the Respondent about the weaknesses in his case (see paragraph 23 above) but nevertheless persisted in his claim. Costs warnings are relevant to deciding whether to award costs (OkoJaja v London Borough of Lewisham (see paragraph 17 above)).41.2 When rejecting the Respondent’s offer to settle his breach of contract claim, the Claimant responded by saying that he would accept £60,000 in settlement. Whilst a Claimant will not be liable for costs simply because they have rejected an offer to settle and then not succeeded with their claim, a refusal of an offer is a factor that the Tribunal can take into account (Kopel v Safeway Stores plc). In refusing the Respondent’s offer, not only did the Claimant ignore the Respondent’s explanation that he was not able to claim the various losses set out in his schedule of loss given his claim was for breach of contract, his counter-offer was significantly in excess of the £25,000 maximum amount that the Tribunal can award in breach of contract claims.41.3 The Tribunal recognises that the Claimant was not legally represented and that a Tribunal should not judge a litigant in person by the standards of a professional representative. However, litigants in person are not immune from orders for costs. (AQ Ltd v Holden see paragraph 20 above). The Tribunal has taken into consideration the fact that:(a) the Claimant was positively encouraged by the Tribunal to take legal advice and directed to sources where he could obtain legal advice, but still failed to do so;(b) the deposit order and the subsequent written reasons for granting the deposit order make it very clear why the Tribunal considered the Claimant had little prospect of success; and(c) the Claimant acknowledged in the hearing he was not able to claim “a number” of the losses in his schedule of loss given he was bringing a breach of contract claim. Even making allowance for the Claimant not being legally represented and having a lack of objectivity about his case, the Tribunal finds that the Claimant focussed purely on the parts of the deposit order and written reasons for the order that set out the points in favour of his claim and unreasonably ignored: (1) the subsequent parts of the deposit order that explained why, notwithstanding those points, his claim had little prospect of succeeding: and (2) warnings from the Respondent about the types of losses he was claiming. How much should be awarded?[42]In terms of how much should be awarded by way of a costs order against the Claimant, the Tribunal has considered the findings of fact in respect of the Claimant’s means and all the parties’ submissions.[43]The Tribunal accepts that the Respondent’s legal costs go beyond what the Respondent seeks in its application, and that in seeking an award to cover only Counsel’s fees (£4,500), it has taken into account the Claimant’s means.[44]Details of the Claimant’s means are set out at page 110 of the Bundle and the Claimant confirmed at the hearing that this information remains accurate (paragraph 31.5 above). On that basis, most months the Claimant has disposable income of at least £600.[45]When considering the amount to be awarded, the Tribunal has also taken into account the fact that costs awards are compensatory, not punitive (Lodwick v Southwark London Borough Council paragraph 16 above).[46]Considering:46.1 the means of the Claimant; and46.2 the Respondent having offered to settle the claim for £3,000 in February 2025 (meaning it would have incurred £3,000 if the Claimant had accepted the settlement offer in February 2025), the Tribunal orders that the sum of £1,500 is paid by the Claimant to the Respondent by way of costs under rule 74(2)(a) of the ET Rules.[47]Under rule 40(8) of the ET Rules, where a deposit is paid to a party under rule 40(7)(b) (see paragraph 39 above), and a costs order is made against the depositor in favour of the party who receives the deposit (as is the case here), the amount of the deposit must count towards the settlement of that order.[48]Consequently, the £250 deposit must be paid to the Respondent and shall be set off against the costs order, thereby reducing the sum to be paid by the Claimant to the Respondent to £1,250. JUDGMENT having been given orally at the final hearing and sent to the parties on 5 March 2025, and written reasons having been requested in accordance with Rule 60(4) of the Employment Tribunal Procedure Rules 2024 (ET Rules), the following reasons are provided:[1]By a claim form presented on 28 October 2023, the Claimant complained of a breach of contract in relation to changes made by the Respondent to break arrangements for employees at its Stafford Fulfilment Centre, with effect from 6 October 2023. The Claimant maintained that the changes were a breach of his employment contract.[2]Early conciliation started on 9 October 2023 and ended on 11 October 2023.[3]By a response form of 29 November 2023, the Respondent resisted the complaint. Its case was that the timing and structure of breaks were not part of the Claimant’s contract of employment or, if they did form part of the contract, the changes to the break arrangements were not in breach of the Claimant’s contract of employment because they were permitted by the terms of the contract.[4]The Claimant represented himself and the Respondent was represented by Mr Holloway of Counsel. The Respondent had prepared a 353-page bundle of documents for the hearing, which was agreed between the parties (Bundle).[5]For the Claimant, the Tribunal heard evidence from the Claimant and from his former colleague Ms Zanfir (via a Romanian interpreter). For the Respondent, the Tribunal heard evidence from Mr Antrobus, the General Manager of the Respondent’s Stafford Fulfilment Centre. Each of the witnesses had provided a witness statement in advance of the hearing.[6]The Tribunal heard submissions from both the Claimant and Mr Holloway. THE ISSUES[7]The issues to be determined by the Tribunal were set out in case management orders of 24 June 2024 as follows:(1) Did this claim arise or was it outstanding when the Claimant’s employment ended?(2) Did the Respondent permanently alter the timing of the Claimant’s breaks and how they would be structured?(3) Was that a breach of contract?(4) If so, how much should the Claimant be awarded as damages?[8]Issue (0 can be further broken down as follows:(a) Did the break arrangements form part of the Claimant’s contract?(b) If so, were the changes to the break arrangements permitted under contract?[9]Issue (4) can be further broken down as follows:(a) Has the Claimant suffered a loss as a result of the breach?(b) If so, how much should the Claimant be awarded as damages.[10]Before evidence was given, Mr Holloway raised a preliminary point in relation to issue (4). He argued that the Employment Tribunal could only award damages that flow from the alleged breach of contract, and not from the termination of the Claimant’s employment. He submitted that the Claimant’s schedule of loss did not set out damages flowing from the breach of contract, only damages flowing from the termination of the Claimant’s employment. He submitted that if the Claimant could not explain the basis on which he is entitled to damages which flowed from the breach of contract, then that should be an end to the proceedings.[11]The Claimant was given some time to consider the damages he was claiming during the Tribunal’s adjournment for reading time. When the hearing was reconvened, the Claimant explained that the damages he was claiming were because he had resigned, and that there were no separate damages as a result of the alleged breach of contract.[12]The Tribunal considered the Respondent’s submissions on this point. In the interests of justice, taking into account the overriding objective, the timing of the point being raised by the Respondent, and the Claimant not having the benefit of representation or professional advice during the hearing, the Tribunal decided to hear the evidence in the claim and then determine liability. Mr Holloway proposed that as part of the issues on liability, the Tribunal consider what damages, in principle, are recoverable. The Tribunal agreed with this approach. FINDINGS OF FACT[13]The Claimant was employed by the Respondent, a national pet care business, as a Warehouse Colleague at the Respondent’s Stafford Fulfilment Centre from 15 May 2023 until 18 October 2023. His contract of employment is at pages 127 – 140 of the Bundle. He worked 37.5 hours per week, excluding breaks and according to clause 5.3 of his contract, his times of work would usually be Tuesday to Saturday between 10pm and 6am.[14]The Stafford Fulfilment Centre opened in January 2023 at the same time as three other Fulfilment Centre sites located nearby closed. Employees based at those nearby sites were asked to relocate and the Respondent also recruited new employees, of which the Claimant was one.[15]The Respondent closely monitored the productivity of the new Stafford site, using a digital reporting system to analyse the rate at which employees in the warehouse picked products and carried out tasks. The data was used to measure productivity and utilisation at the Stafford Fulfilment Centre. As headcount increased, productivity was decreasing. The Respondent investigated the issue and discovered there was wasted time at the start and end of shifts and before and after break times. It also discovered that as headcount increased, there were increasing queues and congestion around the canteen and smoking areas and that rest areas were very busy. The Respondent considered that all of these factors meant that employees were late returning from their break or were finishing early before their break to get a head start. This is set out in paragraphs 9 & 10 of Mr Antrobus’ witness statement.[16]More recruitment was forecast by the Respondent and therefore the Respondent considered that if the issue was not addressed it would only get worse. Mr Antrobus considered it was important to look at the break system and how it might be improved.[17]The break pattern at the Stafford Fulfilment Centre was a paid 30 minute break with two 15 minute unpaid breaks. This break pattern was carried over from the Stoke on Trent site, which was one of the sites being closed. The Stoke on Trent site was the next biggest site and it made sense at the time to mirror the arrangements at Stafford. The break arrangements were also set out in clause 5.5 of the Claimant’s employment contract as follows: “5.5 You are entitled to take an unpaid rest break totalling 30 minutes if you work a full 7.5 hour shift. In addition you are entitled to take a 2 x 15 minute paid breaks if you work a full 7.5 hour shift. […]”[18]In September 2023, the Respondent formally proposed a review of the break arrangements. Mr Antrobus explains in his statement that this involved checking the contractual position regarding break times. The Respondent considered that changes to break times were a permitted change under employees’ contracts of employment. The Claimant’s employment contract contained the following terms in this respect: “5.6 You may at times be required to change your working pattern to meet the needs of the business but you will be given as much notice as possible when this is required.” “22.2 The Company reserves the right to make reasonable changes to any of your terms and conditions of employment within this agreement and within the Colleague Handbook.”[19]The Respondent decided to establish a “Colleague Voice Forum” to carry out some consultation with staff at the Stafford Fulfilment Centre about the break arrangements. Employees were invited via site briefings and the Respondent’s intranet to nominate themselves for the Forum.[20]The Colleague Voice Forum met on 18 September 2023 to discuss the issue of break times. Mr Antrobus was present at the meeting. The Claimant was not present at this meeting. Minutes of the meeting are at pages 155 – 158 of the Bundle. In short, three alternative options for breaks were put forward by the Respondent. These were discussed and a fourth option was also put forward by attendees and discussed. At the end of the meeting, a vote was taken and attendees voted unanimously for what had been called option two: one 45 minute break during the shift (30 minutes unpaid and 15 minutes paid) and a 15 minute early clock out at the end of the shift. It was agreed that this would be tried on a four week trial basis. It was agreed that the forum would meet at the end of the trial period and review how the trial had gone. The meeting minutes show that a detailed discussion was had between the Respondent’s management team and other forum attendees.[21]The Respondent formally communicated the change in break arrangements in a letter to all staff dated 2 October 2023. The letter explained the changes, various reasons for the changes and that the changes would take effect for a four week trial period from 6 October 2023. It is at page 159 of the Bundle. In oral evidence Mr Antrobus could not recall if there was any other communication to staff between the meeting on 18 September and the letter on 2 October, for example on the Respondent’s intranet. He confirmed that there was no formal communication of the break changes before 2 October 2023.[22]The trial period started on 6 October 2023. It is not disputed that staff would not be financially impacted by the change. Their pay would not be affected and their working hours would not increase.[23]On 7 October 2023 the Claimant raised a grievance about the changes to break arrangements, specifying that this change was a breach of contractual terms. He included a list of names and signatures from other staff who disagreed with the new arrangements, all of whom were night shift workers.[24]The Claimant’s concerns were that the changes had not been announced in good time and that there was now only one break. He did not consider the early finish to be a break. He therefore considered the changes to be unreasonable.[25]On 10 October 2023, the Claimant raised a second grievance about the changes to break arrangements, attaching an updated list of staff who disagreed with the new break arrangements. In the grievance email he stated that the changes could not be put in place without a collective agreement. The grievances are at pages 160 – 169 and 172 of the Bundle.[26]On 11 October 2023, the Respondent sent a letter to night shift staff inviting them to volunteer to take part in an interim review of the of the trial, the review being specifically with employees working on night shifts. The letter is at page 173 of the Bundle. The Claimant emailed the Respondent’s HR team on 12 October 2023 to volunteer to attend the interim review meeting.[27]On 16 October 2023, the Claimant found out that other colleagues who had volunteered for the interim review / night forum meeting had received an invitation to the meeting, but he had not received one. He was disappointed about this. On the same day the Claimant resigned with effect from 18 October 2023. His resignation letter is at page 177 of the Bundle.[28]On 18 October 2023, a member of the Respondent’s HR team emailed the Claimant about his resignation letter and acknowledging that he had volunteered for the night forum. The Respondent asked the Claimant to reconsider his resignation and attend the night forum meeting. The Claimant responded the following morning confirming he would attend the night forum meeting on 19 October 2023 and reconsider his resignation afterwards.[29]The night forum meeting was held on 19 October 2023 just after the start of the night shift. The Claimant was in attendance with other staff. The minutes of the meeting are at pages 181 to 184 of the Bundle and show a detailed discussion of various points around the break arrangements and issues that were particular to the night shift. At the end of the meeting it was agreed that the trial would continue and there would be a review at the end of that plus a survey to gather feedback.[30]The Claimant wasn’t happy with the night forum meeting. This was because all four of the options moved a break to the end of the shift. He considered that the real reason for the change was so that the Respondent could take a break away from people. Whilst the Tribunal accepts that this was what the Claimant considered to be the reason for the change, having heard evidence from Mr Antrobus and the Claimant, the Tribunal does not accept that this was in fact the Respondent’s reason for the changes.[31]On 20 October 2025 the Claimant emailed the Respondent’s HR team to say that he could not reconsider his resignation due to being treated for an anxiety disorder which had been diagnosed when visiting his doctor earlier that day. He confirmed by email on 25 October 2023 that this meant his resignation would stand, with the original termination date of 18 October 2023. The Claimant’s termination date was therefore 18 October 2023 and this was confirmed by the Respondent in writing. The emails are at page 185 of the Bundle and the Respondent’s confirmation of the Claimant’s termination of employment is at page 201 of the Bundle.
THE RELEVANT LAW
[32]Under article 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (Order) employees have the right to bring a breach of contract claim against their employers in the Employment Tribunal where those claims are not otherwise excluded and they either arise or are in existence on the termination of the employee’s employment.[33]Under article 10 of the Order the maximum payment that the Tribunal can award for breach of contract is £25,000.[34]An employer may reserve a contractual right to unilaterally change a particular aspect of an employment contract, but clear language must be used – Wandsworth London Borough Council v D’Silva [1998] IRLR 193.[35]Employers can rely on ‘flexibility’ clauses in employment contracts even if it makes changes that are detrimental to the interests of the employee, however implied terms can restrict the way in which employers operate express flexibility clauses. The employer should act reasonably in the way it seeks to rely on ‘flexibility’ clauses to implement intended changes - United Bank v Aktar [1989] IRLR 507.[36]In Bateman v Asda Stores Ltd [2010] IRLR 370, the EAT found that there was no ambiguity about a ‘general flexibility clause’ which stated “The Company reserves the right to review, revise, amend or replace the content of this handbook, and introduce new policies from time to time […]”. The employer therefore had the right to vary contractual terms and so could change payment terms without employees’ consent.[37]An employer’s right to unilaterally vary the terms of an employment contract is subject to the restriction that the employer’s right could not be exercised for an improper purpose, capriciously or arbitrarily or in a way in which no reasonable employer (acting reasonably) would exercise it – Wetherill and others v Birmingham City Council [2007] EWCA Civ 599. SUBMISSIONS[38]For the Respondent, Mr Holloway submitted that clause 5.5 of the Claimant’s employment contract does not put a limitation on breaks being taken at the start or the end of a shift. Provided the break arrangements are compliant with the Working Time Regulations 1998, Mr Holloway argues that under the contract the Respondent has autonomy to decide when breaks are taken.[39]Alternatively, Mr Holloway submitted that the Respondent is entitled to make the changes under clause 5.6 of the contract on the basis that the words “working pattern” are broad enough to mean when breaks are taken and because, taking into account the significant productivity issues and investment into a new Fulfilment Centre, it was imperative that something was done as soon as possible. This meant that as much notice as possible had been given by the Respondent, as required under clause 5.6.[40]Mr Holloway also argued that, if the change was not permitted under clause 5.6, it was permitted under clause 22.2, which was broad enough to cover this type of change on the basis that the changes were reasonable. He argued the changes were reasonable because:40.1 there was a clear business need to increase productivity;40.2 the Respondent was providing employees with more than double the statutory minimum required under the Working Time Regulations 1998;40.3 employees were not any worse off financially or in terms of working hours;40.4 the Respondent consulted with employees before the changes were put in place; and40.5 they were put in place on a trial basis, subject to further review with the staff forum.[41]Finally, Mr Holloway submitted that if there had been a breach of contract, it caused the Claimant no loss.[42]The Claimant submitted that the notice sent to employees on 2 October 2023 did not mention losses being made by the Respondent as a reason for the break changes. He also submitted that the monitoring that had been done was not complete as not all departments in the warehouse were being monitored. He submitted that the Respondent’s system for monitoring was not accurate and not very good for providing data on which to base decisions about breaks. For those reasons the Claimant submitted that the changes to the break arrangements were not reasonable for the purposes of clause 22.2 of the employment contract.
Conclusions
CONCLUSIONS
[43]In terms of the first issue to be determined by the Tribunal, it is not disputed that the Claimant’s claim was outstanding when his employment ended.[44]The second matter the Tribunal must decide is whether the Respondent permanently altered the timing of the Claimant’s breaks and how they would be structured. It is not disputed that, at the time of the Claimant’s termination of employment on 18 October 2023, the Respondent had not made permanent changes to the timing and structure of the Claimant’s breaks. Whilst the Tribunal accepts Mr Holloway’s argument that the Respondent had the autonomy to decide when breaks are taken, it does not accept that moving a break to the end of the shift is deciding when a break should be taken and therefore within the ambit of clause 5.5. Clause 5.5 gives the Claimant a contractual right to one unpaid rest break of 30 minutes and two 15 minute paid rest breaks. The Tribunal accepts the Claimant’s argument that finishing work early is not the same as a rest break. Therefore, the Tribunal concludes that the Respondent made a change to the contractual entitlement to breaks which is set out in clause 5.5.[45]The third matter the Tribunal must decide is whether the changes were authorised by the contract.[46]Looking firstly at clause 5.6, the Tribunal accepts the argument by the Respondent that the wording “working pattern” is broad enough to cover changes to the break entitlements set out in clause 5.5 and the Tribunal accepts that the change was to made in order to meet the needs of the business. The Tribunal must then consider whether the change was made on as much notice as possible, in line with clause 5.6. The Tribunal accepts the Respondent’s argument that it was imperative that something be done as soon as possible and that this is why the changes were implemented on 6 October 2023. However, the Tribunal rejects the argument that the changes were made on “as much notice as possible”. The new break arrangements for a trial period were agreed at the forum meeting on 18 September 2023, but staff were not formally informed about the changes until two weeks later, giving them only four days’ notice. The Respondent could not explain why no communication had been sent before 2 October 2023. The Tribunal therefore concludes that the changes were not authorised under clause 5.6 because the Claimant was not given as much notice as possible.[47]Looking secondly at clause 22.2. This clause gives the Respondent the right to make reasonable changes to any of the terms and conditions of employment in the contract. An employer may reserve a contractual right to change a term within an employment contract, but clear language must be used (Wandsworth London Borough Council v D’Silva – see paragraph 34 above) and an employer should act reasonably in the way it seeks to rely on flexibility clauses of this kind (United Bank v Aktar see paragraph 35 above).47.1 The Tribunal is satisfied that the language of clause 22.2 is clear and gives the Respondent the right to make changes to contractual terms, including the entitlement to breaks as set out in clause 5.5 (Bateman v Asda Stores Ltd – see paragraph 36 above).47.2 The Tribunal is also satisfied that the changes made by the Respondent were reasonable and accepts the Respondent’s submissions on this point, namely:(a) There was a business need to improve productivity;(b) Even with the break changes and the early finish, the Respondent was providing the Claimant with a break during his shift which was longer than the statutory minimum required under the Working Time Regulations 1998;(c) The Claimant was no worse off financially as a result of the change to the break arrangements. His pay was unaffected and his working hours did not increase; and(d) The change to the break arrangements was on a trial basis and subject to review.47.3 Finally, the Tribunal is satisfied that the Respondent acted reasonably in the way it sought to implement the changes and did not exercise its right to vary the contract for an improper purpose, capriciously or arbitrarily or in a way in which no reasonable employer (acting reasonably) would exercise it (Wetherill and others v Birmingham City Council - see paragraph 37 above). The Respondent consulted in some detail with the staff forum at the initial meeting on 18 September 2023 and then with an additional group of night shift staff after receiving feedback from that group via the Claimant’s two grievances. The Respondent agreed as part of that consultation to keep the arrangements under review and to meet again with the forum at the end of the trial period. It also agreed to conduct a survey of staff at the end of the trial period.47.4 On that basis, the Tribunal concludes that the changes to the break arrangements were authorised under clause 22.2 of the Claimant’s employment contract and were not a breach of contract.[48]Given the Tribunal’s conclusion that the changes to break arrangements were not a breach of the Claimant’s employment contract, the Tribunal does not need to address the issue of damages, although the Tribunal notes that the Claimant acknowledged in the hearing that all the damages he suffered arose because he had resigned and that there were no separate damages as a result of the alleged breach of contract (see paragraph 11 above).[49]The Claimant’s claim for breach of contract is therefore dismissed.