Miss S Hughes v Royal Mail Group Ltd: 2404869/2024
REASONS
[1]As noted when I handed down these summary reasons, the parties are entitled to request full written reasons within 14 days of receiving the summary reasons. However, I would remind any party considering such an application that full written reasons would be available publicly in full online and will simply be a more detailed consideration of the same issues, with the same conclusions, but in more detail.[2]I encouraged the parties to take a note of the reasons given; for those who did not, this is simply a written version of those reasons. Summary Reasons[3]I want to thank both advocates for setting out their cases and asking their questions in a way that has assisted me in reaching a decision. It is hopefully clear that I have a grasp of the factual background to the case and I will not repeat that in order to keep my decision to a sensible length. I would emphasise, though, that I have taken into account all the factors that the parties have asked me to consider during their submissions even if I do not refer to them specifically here; I will only refer to the issues which I considered to be relevant and, because these are summary reasons, formed the basis of my decision on each point.[4]Mr Mugliston suggested at the start of his submissions that the PCP of “a requirement to work beyond 3pm” was appropriate and was uncontroversial; and Mr Percival did not say anything to the contrary. It is of course a matter for the Claimant to assert and for me ultimately to decide but we did discuss it and, for those reasons, I am satisfied that this is an appropriate PCP and allows for a correct analysis of the potential discrimination in this case. As I said when we discussed it, the only issue I did think may arise with the PCP as set out in the list of issues was whether or not it included reference to the exception process and, ultimately, my view was that this is really part of the justification element rather than it being the PCP itself; although there could well be quite a convoluted argument which could arguably support either approach. I therefore proceeded the basis of the PCP being “a requirement to work beyond 3pm” as set out originally in the list of issues.[5]Working through the list of issues in order, the next question is whether the PCP was applied to the Claimant by the Respondent. It is perhaps somewhat unusual in cases of this nature for this to be controversial but it clearly was in here. I therefore had to make a finding of fact on this point. In any findings that I made, I reminded myself that the party with the burden of proof has to satisfy that burden on the balance of probabilities and, on this issue of the application of the PCP, that must be the Claimant. I heard evidence from the Claimant and Mr Marriott and 3 witnesses for the Respondent, namely Mr Hopkins, Mr Cooper and Mr Carr, and had witness statements from them all which I read carefully. As I said during submissions, I did not consider that any of the witnesses was trying to intentionally mislead me about anything and that everyone was trying to do the best they could to recall events that took place some 2 years ago now, which can impact on the accuracy and, therefore, the reliability of the evidence given. I did not consider it necessary to make factual findings on every issue in dispute but, where I felt that I did have to make a finding, it was of course necessary to prefer one account over the other; that does not mean that I considered the rejected account to be a lie, simply that the weight of the evidence, based on oral evidence and the available documentation, was more likely to be correct than the other account.[6]I therefore had to decide if the PCP was applied to the Claimant or not as a question of fact, not law. Of course, the Claimant argued that it was and the Respondent argued that it was not. I make it clear, as I did during submissions, that this is a question of objective fact and not of subjective belief; as such, the Claimant’s perception of the situation, whilst it was certainly one factor to take into account as part of the evidential matrix, could not be determinative of the issue.[7]It was agreed that, as of 9th March 24, the Claimant’s working hours were agreed between her and Mr Hopkins as being 9-3, Wednesday, Thursday and Friday and that this was at the Claimant’s request based on childcare issues and her reports of mental health difficulties. As such, the question I had to decide was whether or not this was, as a fact, ever changed during the period we were dealing with, which was effectively until September 2024, when the Claimant returned from sick leave on those same hours but on Monday, Tuesday and Wednesday.[8]I had in mind when deciding this issue that the Claimant’s contract (as with all similar employees of the Respondent) allowed for changes to be made to her working hours as required. I also kept in mind that this was different from, but seemed to run alongside, the whole issue of the NWC project and the exceptions process; however, I am bound to observe that, after hearing all the evidence and considering the documentation before me, I was still very unclear about how the two strands were intended to work together and how they in fact did.[9]The Claimant effectively relied on 2 main arguments to support her contention that she was subject to the PCP to work beyond 3pm. The first is the discussion with Mr Cooper which most likely took place on 28th June 24 and the second is the letter of 26th March 20/24 (at page 94 of the agreed hearing bundle) from Mr Cooper rejecting the Claimant’s application for an exception form the NWC.[10]Dealing with the conversation on or around 28th June, the date was somewhat confused for reasons that were aired during the evidence and submissions and I do not repeat here. As I alluded to before, I do not criticise the Claimant for having got the date wrong by a week in her schedule of loss and Mr Cooper did not dispute the suggestion that it could have happened on the Friday before the Claimant went off sick the next week. The real issue is what was said but also how that impacts on the question of whether the PCP was indeed applied to the Claimant. In effect, the Claimant says that she was with Mr Marriott when Mr Cooper approached them and told her that she would be working longer hours, which she queried and he simply maintained that she would be; this seems to be why she then began sick leave.[11]It is agreed that Mr Marriott was with the Claimant but he does not deal with this incident at all in his written evidence save for alluding to it in passing at paragraphs 24 and 25. In cross-examination, Mr Marriott gave a similar account of the conversation to the Claimant but he agreed that he then corrected Mr Cooper about the 10-minute issue at a later stage and that Mr Cooper agreed it had been an error; he also agreed that the Claimant never actually did work after 3pm, although noted that she did start sick leave after this incident, points which I considered to be important for reasons below. The Claimant also said in cross-examination that she could not recall whether, as she alleged, Mr Cooper approached her to start the discussion or vice versa.[12]Mr Cooper told me that the Claimant had approached him and queried why she was being told to work late. Again, I do not repeat his evidence but, in effect, he told me that he told her what the general position was but asked at least once to discuss it in his office as that was more appropriate; had the Claimant agreed to do that, he said, he would have told her that the general position did not apply to her as she had agreed 9-3 with Mr Hopkins. Mr Cooper accepted, fairly but correctly in my view, that he should really have clarified this with the Claimant at the time or shortly afterwards but did not. That, I find, left the Claimant with a clear impression that may not have been what was intended. I note that, in cross-examination, the Claimant initially denied that Mr Cooper asked her to go into his office to discuss it but this was not dealt with in her witness evidence in any detail and she then said in cross-examination that she did not recall who approached whom.[13]In my view, what matters most here is what I can infer from this discussion as, in many ways, what I am faced with is differing perceptions of a conversation 2 years ago where the subject-matter is almost entirely agreed but there are specific details which are not. On the balance of probabilities, I accept Mr Cooper’s account that he asked the Claimant to come into the office to discuss matters, at which point he would have explained the situation properly; I do so because, on the totality of the evidence, it seems likely to me that the Claimant simply remembers the words about working later than others which, perhaps understandably, distressed her enough to decide to take sick leave almost immediately; I have to balance this with Mr Cooper’s account which, although not set out in any great detail in his statement either, was explained in a credible and consistent manner in cross-examination and did not change under questioning in any material way. I also note that there is no evidence of any cogency to the effect that Mr Cooper’s intention was to specifically change the 9-3 agreement and that, further, this is feasible because, as he pointed out, it was actually not for him to do that as the agreement had been reached with Mr Hopkins and he was free to manage his team how he sought fit as far as Mr Cooper was concerned.[14]Turning to the letter 26th March rejecting the Claimant’s application for an NWC exception, I made it clear during the hearing, and I repeat now, that unfortunately I consider it to have been written carelessly without full consideration of the importance of the issue to the Claimant, which I think Mr Cooper now recognises. The real culprit is the reference to the different shift pattern agreed with the Claimant’s line manager, i.e. Mr Hopkins (which also fortifies my finding that Mr Cooper would have had this in mind during the conversation on 28th June) “[w]hich we have already accommodated”. It does not say anything more and it clearly should have done. However, I have to decide if, on balance, this means that the agreement was being ended or that it would continue irrespective of the rejection of the exception application. Mr Cooper told me that he intended it to mean that the agreement would continue but I can well understand why anyone reading it, most importantly the Claimant, would either not understand what it meant or would think it meant that the agreement was not being continued.[15]However, the Claimant’s subjective response is not the point in issue here and I had to see it as but one factor in the balance of whether the Claimant was right to say that it indicates positively that she was told she would be working after 3pm. I note that the Claimant never actually worked after 3pm and that, most importantly, I have seen nothing to suggest that there was any intention to specifically tell her that she would be doing so or that the 9-3 agreement would be ending.[16]I have to say that I have found this to be particularly difficult and finely-balanced finding to make, both because it is so important to the Claimant’s case as a whole but, more importantly, because there is very little cogent evidence in the documentation one way or the other. However, I have to make a finding on the balance of probabilities and, given the clear evidence from Mr Cooper that he never intended to end the 9-3 agreement, either during the conversation on 28th June or in the letter of 26th March, and in the absence of any other documentation or reason to find that the Claimant was told that her shift was being changed, I am unable to find that she was told this. As such, I find on the balance of probabilities that the PCP of working beyond 3pm was not applied to the Claimant. That must mean that I go no further because the Claimant has failed to prove a vital ingredient of her claim.[17]However, I wanted to make a number of further observations both for the sake of completeness and because I considered it fair to do so.[18]First, for the avoidance of doubt, had I found that the PCP did apply, I would have found that the Claimant did establish group disadvantage and then individual disadvantage. As these are summary reasons, I do not provide the detail of my reasons for those findings but they were, in my view, equally finely- balanced arguments.[19]Second, the justification defence would have been relevant had I made alternative findings and I wanted to explain this briefly for the Claimant’s benefit as much as anyone else’s. I am sure it is clear why I say this and that it will not surprise anyone given what I have already said but I consider the way in which this whole episode was dealt with was quite frankly careless on the part of managers who should have been more alive to the distress that the Claimant’s concerns were causing her and the ability of clear communication to allay her concerns. I can well understand why the Claimant feels that she has been wronged and I hope that lessons will be learnt from that. However, nothing in that can change the legal test that I have to apply in a claim for indirect discrimination.[20]I say this as part of the justification issue because I agree with the tenor of Mr Mugliston’s submissions that this poor performance cannot be the beginning and the end of the matter. I also agree that the difficulty which Mr Cooper and Mr Carr candidly expressed about reaching a decision on exceptions, whilst quite shocking to hear in the context of this case, on further consideration does really serve to illustrate the significant nature of the changes nationally, especially as they affected the Southport office, and that there is only so far that a business can go in trying to find accommodation for all staff when such changes are made. I therefore did not find the process to have been a sham, as effectively suggested on behalf of the Claimant. This was another finely balanced argument but, had I made alternative findings on the PCP issue, I would have found that the justification defence did succeed as it appeared to me, on the basis solely of the evidence I heard, that the Respondent made proportionate efforts to find a way through. There will always be alternative suggestions put forward but it seems to me that, taking a step back, the Respondent’s response as to why each of these, as discussed during the hearing, would not have been proportionate to the disadvantage asserted was reasonable in all the circumstances.[21]For these reasons, whilst I did have considerable sympathy with the Claimant in respect of how the matter was dealt with in her specific case, I find that I have no choice but to dismiss the claim on the basis that the PCP was not actually applied to the Claimant. Had I found that the PCP was applied and that it did lead to both group and individual disadvantage, I would have found that the justification defence succeeded.