Miss J Newton v The Tap Room Ltd: 3314599/2019
JUDGMENT
[1]The Claimant’s complaint that she was indirectly discriminated against by the Respondent, succeeds.[2]The Claimant’s complaint that the Respondent directly discriminated against her is not well founded and does not succeed.REASONS
[1]By a claim form received by the Tribunal on 9 May 2019, following a period of Acas Early Conciliation between 16 April 2019 and 1 May 2019, the Claimant brought a claim against the Respondent that she had been discriminated against on the grounds of sex. At a Case Management Preliminary Hearing before Employment Judge Cassel on 13 February 2020, it was identified that the Claimant was pursuing complaints of both direct and indirect discrimination. The complaints arise out of the same facts relating to a proposed change to her days and hours of work which she asserts impacted her disproportionately as a working mother with childcare responsibilities.[2]The Claimant represented herself throughout the proceedings, including at the final Hearing. The Respondent was represented by one of its directors, Neil Greatorex. The parties had not agreed a single Hearing Bundle. Following discussion with the parties, it was identified at the Hearing that the Tribunal would primarily use the Respondent’s Hearing Bundle as it incorporated the majority of the documents relied upon by the Claimant and was indexed and paginated, whereas the Claimant had submitted a loose collection of documents. Nevertheless, the Tribunal had regard to the copy documents provided by the Claimant where these were clearer than the copies in the Respondent’s Hearing Bundle or where they had been omitted from that Bundle. The parties submitted additional documents during the course of the Hearing itself including a copy of a letter from the Respondent to the Claimant dated 21 January 2019 regarding the termination of her employment.[3]By his own admission, Mr Greatorex had failed to prepare for the final Hearing on a timely basis, with the result that the Respondent’s Hearing Bundle was submitted to the Tribunal and provided to the Claimant only very shortly before the Hearing was due to commence. We recognise that this was unsettling for the Claimant and made allowance for this during the Hearing.[4]The Claimant gave evidence in support of her claim and submitted a threepage summary statement / submission, at pages 26 – 28 of the Respondent’s Hearing Bundle. She adopted the document as her statement of evidence in the proceedings. The Respondent submitted a six-page statement in response to that document, a copy of which is at pages 29 – 34 of the Respondent’s Hearing Bundle. Mr Greatorex, who gave evidence on behalf of the Respondent, adopted that document as his statement of evidence. Both parties sought to rely upon emails from the Respondent’s former staff as additional evidence in the case. The emails in question from Adam Fennell, John Hall and Amanda Buttriss were not signed, though the Tribunal has no reason to doubt they wrote them. However, having not heard their evidence in person, the Tribunal attaches limited weight to the contents of their emails.[5]The Claimant and Mr Greatorex were each, in their own way, quarrelsome and unsatisfactory witnesses who, at times, showed limited respect for the Tribunal process in spite of repeated requests to modify their behaviour. They certainly demonstrated little to no respect for one another. Their conduct during the Hearing has made the task of the Tribunal more difficult.Findings
[6]The Claimant was employed by the Respondent as a Team Leader and Marketing Assistant at its Taproom bar and restaurant in St Ives, from 13 March 2017 until 3 February 2019 when she was dismissed. There was some suggestion by Mr Greatorex that the Claimant had not been dismissed, but his letter to the Claimant of 21 January 2019 states unequivocally that the Respondent was giving notice to the Claimant to terminate her employment. He wrote, “I am therefore left to accept your previous comment that you cannot work the shifts offered, and it therefore follows that there is no longer any role for you at The Tap Room. In accordance with the terms of your employment [which the Tribunal believes to be a reference to Clause 10 of the Claimant’s Contract of Employment] there will be a notice period of two weeks starting today.”[7]The Claimant was absent from work and certified unfit for work by her GP when Mr Greatorex wrote to her on 21 January 2019 and she remained on sick leave through to 3 February 2019 which was her final day of employment with the Respondent.[8]The Claimant initially joined the Respondent on a zero hours contract, though subsequently, in or around April 2018, she was issued with a contract which guaranteed her 20 hours of work per week. The contract provided, “The actual days of work will vary from week to week depending upon the staff rota. Your days and hours of work will be communicated to you via the monthly rota by your Manager”. (page 60 of the Respondent’s Hearing Bundle)[9]During much of the Claimant’s employment, her manager was Ms Buttriss. They evidently enjoyed a close and effective working relationship, and we accept the Claimant’s evidence that she enjoyed working at the Taproom. In a short email statement filed by the Respondent, Ms Buttriss refers to the Claimant as a good friend. During cross examination the Claimant agreed with Mr Greatorex that she had been Ms Buttriss’ “wing man”. We find that as well as being friends, the Claimant and Ms Buttriss played to one another’s strengths, the Claimant being a reliable front of house member of staff with Ms Buttriss back of house dealing with a wide range of management/administrative tasks. The Claimant described Ms Buttriss as a “whirlwind of a person”. Contrary to the Claimant’s contract, Ms Buttriss was in the habit of fixing the staff rota on a weekly basis.[10]In the course of these proceedings Mr Greatorex undertook an analysis of the hours and shifts worked by the Claimant during her employment with the Respondent. That analysis is at page 164 of the Respondent’s Hearing Bundle. Whilst the Claimant did not have access to the underlying data from which the analysis was prepared, the Tribunal accepts that it is accurately reflects the hours and shifts worked by the Claimant. Although it is broken down into months “1” to “23”, each month is in fact a four-week period. The analysis evidences that the Claimant’s hours or work fluctuated throughout her employment, seemingly even after she transitioned to a fixed 20-hour contract in or around April 2018. The Tribunal is unable to reach an informed view as to whether some of that fluctuation during 2018 can be explained by holiday and / or sickness absence. The analysis further evidences that the Claimant worked some evening and weekend shifts during her employment, albeit no evening shifts were worked by her after August or September 2017 and she only worked three weekend shifts after that date, the last such shift worked being in or around March 2018.[11]The Claimant told the Tribunal that her partner was unemployed during the early months of 2017 before he secured a job with a College in London which involved him commuting daily from St Ives to London. Once he took up that role, he was no longer available during the week to share any childcare responsibilities, the full burden of which fell upon the Claimant. The Claimant has a young son who we calculate would have been between 7 and 9 years old during the period that the Claimant worked for the Respondent. The Respondent did not challenge the Claimant’s evidence that she has no immediate family in the area to assist with childcare. That said, in so far as the Claimant largely stopped working weekend shifts, she did not attribute this to her childcare responsibilities even if she and her partner may have welcomed family time together over the weekend. She did not suggest in her evidence to the Tribunal that she had the greater burden in terms of childcare responsibilities even at weekends.[12]Notwithstanding Ms Buttriss’ email statement, we find that the Respondent (or at least Ms Buttriss) was able to accommodate the Claimant’s need for flexibility over a period of more than a year. One of the ways that the Claimant’s situation had been accommodated was that the Claimant’s son would come to the Taproom immediately after school and wait between 15 and 30 minutes for the Claimant to finish her shift. We accept Mr Greatorex’s evidence that he should not in fact have been left unaccompanied in the bar or restaurant area in this way, even if he was very much within ear and eye shot of the Claimant. We accept Mr Greatorex’s evidence that such arrangements may well have been in breach of the Taproom’s alcohol licence. We find that the arrangements in this regard reflected Ms Buttriss’ particular management style as well as her friendship and working relationship with the Claimant. We do not accept the Claimant’s suggestion that Mr Greatorex knew about the arrangement prior to November / December 2018. The Taproom was just one of his business interests and he left its day-to-day management to Ms Buttriss. He may well have seen the Claimant’s son at the Taproom on occasion, but we find that he was unaware this was a regular arrangement.[13]In terms of the background, we note that the Claimant was not in the habit of working Tuesdays, being the day that beer deliveries were made to the Taproom. Further, that the only time the Claimant commenced work before 9am was on 14 February 2018 when Ms Buttriss had also been on duty. So, whilst we accept that, as with all staff, the Claimant inevitably had some involvement in managing the cellar area, she was not actively involved in the more physically onerous task of handling the weekly delivery of casks / barrels of beer into the cellar, or the less onerous weekly cellar line clear.[14]Ms Buttriss left the Respondent’s employment in November 2018. Her departure was keenly felt by Mr Greatorex and indeed the Claimant. Following her departure, Mr Greatorex became more closely involved in the day-to-day management of the Taproom. On 7 December 2018, he messaged the Claimant asking if she could work 4 days the following week from 8:30am to 3pm, including observing and providing some initial training to some new members of staff, including one employee who was to remain on duty after the Claimant left until the first member of the evening shift arrived at 4:45pm. The fact that Mr Greatorex proposed that the Claimant work from 8:30am to 3pm evidences to the Tribunal that he was aware of the hours the Claimant had been working until then and her need to work hours that accommodated her childcare responsibilities. As we shall return to, in his statement, Mr Greatorex refers to those responsibilities as her “preference”.[15]The Claimant sent a short positive response to Mr Greatorex’s message of 7 December 2018 and wished him a pleasant weekend.[16]The next communication in the Respondent’s Hearing Bundle is a text from the Claimant to Mr Greatorex on 17 December 2018 after the staff rotas had been made available. She wrote, “Hi Neil, I just want to check that my fixed rota has gone from 4 shifts to 2, and that is how it is staying for the foreseeable.”[17]Mr Greatorex responded to say that this was not the case and that a third shift had been added for the following day, 18 December 2018. He went on to say that the spread of shifts in the New Year would depend on the Respondent’s trading performance in December and how busy January was. The Claimant told the Tribunal that she began to feel unwell on 17 December 2018 with stress / anxiety caused by work related correspondence. The only correspondence of which we are aware is Mr Greatorex’s message just referred to, a copy of which is at page 37 of the Respondent’s Hearing Bundle. We find it is inherently unlikely that this message would have triggered a stress / anxiety reaction in the Claimant. The more likely explanation for the feelings of stress and anxiety then being experienced by the Claimant was that it was approaching the first anniversary of her sister’s untimely death which the Claimant acknowledged as a distressing and significant event. The Claimant worked for perhaps an hour on 18 December 2018 before going home unwell. It was her last rostered day before a period of planned annual leave commencing on 20 December 2018. In the event, she never worked again at the Taproom.[18]On 30 December 2018, Mr Greatorex messaged all staff to let them know that the next rota was under discussion. Whilst a copy was not in the Respondent’s Hearing Bundle, Mr Greatorex messaged the Claimant separately on 31 December 2018 stating that she was due to work on Thursday and Friday the following week and asking whether she wished to take these days as annual leave given it was still the school holidays. That seems to have prompted the Claimant to assert that her rota had not changed, something Mr Greatorex apparently disputed.[19]On 2 January 2019, Mr Greatorex messaged the Claimant, “I am having to change the rota and the only way to get you your 20 hours a week would be to include longer shifts (after 3.00) on weekdays, evenings and weekends. What flexibility do you have? Happy to meet and go through it if easier?” (page 38 of the Respondent’s Hearing Bundle)[20]This was the first time Mr Greatorex referred to a potential need or requirement for the Claimant to work beyond 3pm during the day and to work evening and weekend shifts. It was a need / requirement that he would continue to reference in his further communications with the Claimant including in his letter of 21 January 2019 in which he gave notice terminating the Claimant’s employment with the Respondent. The Claimant responded to his message as follows, “Hi Neil, we’ll have to talk. It has always been known that [I] can only do days due to [my son]. I can work after 3. I have done that before. Amanda was always fine with [my son] coming down and waiting for me until 4 (only 15 mins).” (page 38 of the Respondent’s Hearing Bundle)[21]Regrettably, whilst the Claimant and Mr Greatorex each recognised that it would be beneficial for them to speak, that did not happen. Given how they conducted themselves at Tribunal, not least their persistent inability or unwillingness to listen to what the other had to say, but instead to talk over one another, we find that they each became somewhat entrenched in terms of their views and positions, a state of affairs that has persisted through to the conclusion of these proceedings.[22]Strictly, there was no need for the Claimant to refer to her son in her message since, as we have set out above, we find that Mr Greatorex understood she had childcare responsibilities even if he may have been unaware that her partner had taken a job in London with the result that the burden of childcare fell to her. Be that as it may, we do not consider that Mr Greatorex was acting unreasonably in seeking to explore with the Claimant whether her contracted hours could be met through evening and weekend working. Even if the Claimant could not ultimately accommodate his request, her response suggested a degree of inflexibility on her part. But if the message suggested some inflexibility on her part, it was Mr Greatorex’s subsequent letter of 3 January 2019 that we find changed the dynamic of their discussion. The letter is at page 39 of the Respondent’s Hearing Bundle. Again, it refers to her “preference” to work day shifts during the week.[23]Mr Greatorex confirmed his intention to move to more settled working arrangements, certainly on a month-to-month basis, rather than weekly as had been the case when Ms Buttriss was managing the Taproom. He went on to say that, subject to some exceptions, a 3pm finish would no longer be the norm in future and that the Claimant’s inability to routinely work until 5pm (the start of the Thursday to Sunday evening shift), and to a lesser extent her inability to start before 8:15am, meant that the ability for her to work day shifts had reduced. Mr Greatorex reiterated that evening and weekend working would be required if he was to allocate her 20 hours each week. He referenced Clause 2 of the Claimant’s employment contract, namely, that her days and hours of work would be confirmed monthly. In the penultimate paragraph of his letter, he wrote, “I am fully committed to finding you 20 hours per week on the new rota, including during the quiet month of January, but those hours will need to include a Saturday day shift, a weekday evening and a weekday. For next week that would be Tuesday 8th 10:30 – 17:00, Thursday 10th 19:00 – 1:30 and Saturday 12th 09:00 – 17:30.”[24]Notwithstanding Mr Greatorex’s comments that a 3pm finish would not now be the norm and that the Claimant would need to be available until 5pm, the Week A and Week B rotas (Reference 9 and 10 of the Claimant’s documents) evidence that other male and female members of staff were respectively rostered to start and finish between 9 - 9:30am and 3 – 4pm on Mondays, Tuesdays, Wednesdays and Fridays. We can therefore well understand why the Claimant considered that the published rotas were, at least on the face of it, at odds with the comments in Mr Greatorex’s letter.[25]At that point in time, Mr Greatorex’s stated justification for changing the Claimant’s shifts was a need for at least two people to be on duty through to the end of each day shift and, to a lesser extent, for someone to be available to open up at 8am. Whilst Mr Greatorex expressed that he remained happy to meet with the Claimant to discuss the situation, including the Claimant’s suggestions as to how her 20 hours might be accommodated, the letter conveys a firm impression of inflexibility on the Respondent’s part, citing as it does provisions in her contract of employment to support what were not expressed to be tentative proposals.[26]The Claimant was of the same view and expressed this in a short email response in which she said that it was clear to her that the Respondent wanted her to work hours, “that just aren’t possible”. She wrote, “I appreciate it has to be fair for everyone. My family situation is not something I can change”. (page 40 of the Respondent’s Hearing Bundle)[27]That prompted Mr Greatorex to respond by email at 20:35 on 4 January 2019, “Regrettably for you the bar doesn’t function around your childcare arrangements.” (page 41 of the Respondent’s Hearing Bundle)[28]Mr Greatorex may have subsequently sought to distance himself from that comment, but we find that it accurately reflects his state of mind and thinking on the issue at the point at which it was expressed and accordingly that he did not regard the Claimant’s family situation as any real concern of his or something that particularly needed to be weighed in the balance. We are reinforced in that view by his various references, which he continued to make at Tribunal, to the Claimant’s working arrangements as reflecting a “preference” on her part rather than a necessary consequence of being a working mother with childcare responsibilities for a young child.[29]The Claimant has highlighted various shifts at this time that she might have worked but which were allocated instead to her colleagues. Mr Greatorex did not suggest that he had spoken to those individuals to establish whether they might have worked other or fewer shifts in order to free up some or all of them to the Claimant. We further note that when Mr Greatorex wrote his email of 4 January 2019, he knew that the Claimant had been signed off work by her GP for at least two weeks with an anxiety disorder. Even if he was frustrated by the turn of events and what he perceived as the Claimant’s inflexibility and unwillingness to actively engage with him, he might have reflected on the situation, in particular whether such comments would serve to heighten her feelings of stress and anxiety. It was insensitive on his part and it is unsurprising that the Claimant did not respond to his email. We find that he only subsequently reflected on the matter before then endeavouring to retrieve the situation.[30]Over the next 24 hours, Mr Greatorex drafted a detailed three-page letter to the Claimant setting out his justification for the new rota, including why he was proposing that the Claimant should work longer day shifts, and evening and weekend shifts. In his letter, which he did not email to the Claimant until 7 January 2019, he said that if the Claimant was unable to make suitable arrangements at home to work the shifts allocated to her he would need to terminate her employment. He offered her the option to revert to a zero hours contract. He also stated that he had repeatedly offered to discuss the matter with the Claimant. Whether or not he had “repeatedly” done so, as with his earlier communications, the letter did not indicate that he retained an open mind or that he regarded the Claimant’s childcare situation as other than an issue she must navigate around the Respondent’s requirements. Not surprisingly, the Claimant regarded his closing offer to discuss the matter as somewhat hollow given both his intemperate email of 4 January 2019 and the threat of dismissal in the penultimate paragraph of his letter.[31]Mr Greatorex’s letter of 5 January 2019 is structured and expressed in slightly different terms to his witness statement, but the differences are not material. We are content that the letter is consistent with the justification defence put forward in paragraphs (a) to (i) of Mr Greatorex’s witness statement and to which we return below.[32]On 18 January 2019, the Claimant’s GP issued her with a further Fit Note certifying her unfit for work until 3 February 2019 due to an ongoing anxiety disorder. There was an email exchanged between the Claimant and Mr Greatorex on 17 January 2019, albeit the Tribunal was not provided with a copy of this exchange. We were provided with a copy of an email that the Claimant sent Mr Greatorex on 18 January 2019 in which she stated that she was not in a fit state to meet with him. She addressed certain aspects of his letter of 5 January 2019 but said in conclusion, “I am finding the more correspondence we have the more intimidated I am feeling. I am forced to defend myself with things that are said and for that reason given my current mental state I cannot continue to go back and forth this way. I no longer feel comfortable and it is clear our working relationship is damaged beyond repair.”[33]At Tribunal, Mr Greatorex described the position as at 21 January 2019 as a “Mexican standoff”. He and the Claimant were evidently not communicating in a constructive or friendly way, but Mr Greatorex’s description fails to recognise that the Claimant had recently marked the anniversary of her sister’s death and had by then been absent for over two weeks with a certified anxiety disorder.[34]The dismissal letter itself is not part of the Respondent’s Hearing Bundle, nor was it included within the Claimant’s pack of documents, though a copy was provided to the Tribunal in the course of the Final Hearing. Mr Greatorex refers in that letter to a request apparently made on 17 January 2019 that the Claimant confirm she would accept the shifts allocated to her and that such confirmation had not been forthcoming. He went on to say, “I am therefore left to accept your previous comment that you cannot work the shifts offered, and it therefore follows that there is no longer any role for you at The Taproom. In accordance with the terms of your employment there will be a notice period of two weeks starting today, which is of course academic as you are signed off until 3 February.”[35]His letter concluded with an offer effectively to reinstate the Claimant if her stated position changed. The Claimant’s final day of employment was 3 February 2019. Law and Conclusions[36]Section 13(1) of the Equality Act 2010 (“EqA”), provides: 13 Direct Discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[37]Section 19(1) of the Equality Act 2010, provides: 19 Indirect Discrimination (1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.[38]Section 19(2) of the EqA 2010, goes on to provide, (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if –(a) A applies, or would apply, it to persons with whom B does not share the characteristic;(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it;(c) it puts, or would put, B at that disadvantage, and(d) A cannot show it to be a proportionate means of achieving a legitimate aim.[39]In our judgment, the Respondent clearly applied a provision, criterion or practice (“PCP”) which was discriminatory in relation to the Claimant’s sex, namely a requirement that she work a longer day shift, on Thursdays and Fridays potentially finishing at 5pm, and that she work evenings.[40]The Claimant was in her mid-thirties when employed by the Respondent. Judicial notice has been taken of the fact that women aged in their midtwenties to mid-thirties are likely to be more responsible for childcare than men, that a higher proportion of women than men work part-time, and that women are more likely to be secondary earners. This was all true of the Claimant. It has long been established and accepted that policies that affect those with childcare responsibilities disproportionately affect women. In our judgment, women with childcare responsibilities are disproportionately affected by the requirement to work outside school hours and that the Claimant was individually at that disadvantage. It seems to the Tribunal that women’s greater responsibility for childcare is not limited to the working week but extends into the weekend. However, if women are so disadvantaged, we are not satisfied that the Claimant herself was at a particular disadvantage in terms of weekend working. She gave no evidence at Tribunal that her partner was unable or otherwise unavailable to share or assume the burden of responsibility for childcare during periods at the weekend when the Claimant might be required to work either an afternoon or evening shift.[41]The question for the Tribunal is whether the Respondent can show that the requirement that the Claimant work extended hours during day shifts and that she work evening shifts during the week, was a proportionate means of achieving a legitimate aim. The Respondent has the burden of proof in this regard.[42]In terms of the Respondent’s stated legitimate aims set out at paragraphs (a) to (i) of the fourth page of Mr Greatorex’s statement: (a) The departure of Ms Buttriss, including the fact that she and the Claimant were friendly and played to one another’s strengths, forms part of the context of this case, but in our judgment in and of itself does not amount to a legitimate aim for the purposes of Section 19 of the Equality Act 2010; (b) Likewise, the fact that the Respondent’s holding company was restructured in April 2018 following the sale of the largest business in the group, provides relevant context, including that administrative support was freed up elsewhere in the organisation, but in our judgment does not in and of itself amount to a legitimate aim for the purposes of Section 19; (c) At or around the same time that Ms Buttriss left the Respondent’s employment, another employee, Donna Bell returned to the business following a period of maternity leave. Ms Bell assumed many of Ms Buttriss’ administrative duties but we were told had no front of house responsibilities or experience. Ms Buttriss’ departure meant there was one less member of staff available to ensure The Taproom was open for business at 8am. We are satisfied that the Respondent was pursuing a potentially legitimate aim in so far any changes to the Claimant’s shifts may have reflected the Respondent’s need to more clearly define the front of house and back of house roles following Ms Buttriss’ departure; (d) Related to this, we accept that the Respondent was pursuing a potentially legitimate aim in ensuring that there were sufficient front of house staff available to open the Taproom at 8am, particularly following the launch of a new initiative, ‘The Desk Club’, a flexible work hub and meeting space; (e) The fifth stated aim was expressed as “the financial importance of the shifts that the Claimant wished to be excluded from, which represents 70% of the total front of house hours.” However, ineloquently expressed, the Tribunal understood the Respondent to be saying that it wanted to ensure there were sufficient staff on duty during busier shifts which generate the greatest part of the Respondent’s income. We accept that the Respondent was pursuing a potentially legitimate aim insofar as it wished to roster staff to ensure it had sufficient staff cover at times when the bar and restaurant were busiest; (f)(g) In so far as the Respondent wished to offer staff some variety of shifts, particularly in order to support staff retention, we consider this was a potentially legitimate aim albeit the Respondent led no evidence that staff did in fact prefer to work a variety of shifts, as opposed to only weekend and evening shifts, or that any retention difficulties it may have experienced were linked to a perceived lack of variety in shifts; (h) Insofar as there was a reduced need for staff in January, the Respondent was potentially pursuing a legitimate aim in offering the Claimant shifts outside her normal working pattern in order to reach her guaranteed 20 hours per week; (i) We consider that the Respondent was potentially pursuing a legitimate aim insofar as it rostered Tuesday and Wednesday morning shifts with due regard to its Health and Safety obligations and / or by ensuring that those on duty could lead the organisation of the cellar and oversee the line cleaning process; (j)(k) As with (a) and (b) above, the Respondent’s suggestion that it offered to keep the Claimant’s position open to her and/or that it offered her the opportunity to revert to a zero hours contract provides potential context but do not amount to legitimate aims for the purposes of Section 19 of the Equality Act 2010.[43]Consideration of an employer’s defence of justification in claims of indirect discrimination requires an objective balance to be struck between the discriminatory effect of the PCP and the reasonable needs of the party who applies it. This balancing exercise is the test of proportionality. Even if an aim is a legitimate one, the means of achieving it must be proportionate. As a Tribunal, we are required to conduct a proper evaluation of the discriminatory effect of the PCP as against the Respondent’s reasons for applying it, taking into account all the relevant facts. We have to reach our own judgment as to whether the discriminatory proposal or measure is reasonably necessary. That involves a critical evaluation as to whether the Respondent’s requirement that the Claimant work longer shifts and evening shifts during the week was reasonably necessary. In this case the Respondent’s decision and its business reasons will be respected but they must not be unequivocally accepted. Here, the discriminatory effect of the PCP is clear. The Respondent’s requirement for the Claimant to commence work by at least at 8am and to continue working until 4pm on Mondays to Wednesdays and 5pm on Thursdays and Fridays, as well as its requirement that she work evening shifts during the week, meant that, had she not been dismissed, the Claimant would have been unable to continue in the Respondent’s employment. She would have been compelled to resign her employment.[44]This would have represented an obvious hardship in circumstances where the Claimant evidently enjoyed her job. The question then is whether the Respondent has satisfied the Tribunal that its proposals were reasonably necessary, namely whether they were justified notwithstanding their discriminatory effect. In our judgment, the Respondent has failed to satisfy the Tribunal that its needs outweighed the Claimant’s and that they could not have been achieved in a less impactful way.[45]In his statement Mr Greatorex describes the 8am opening as essential, but he attached limited significance to this aspect in his letter to the Claimant of 3 January 2019. Notwithstanding Ms Bell was not employed to work front of house, he did not explain to the Tribunal why she could not have been trained to open the premises or, failing that, why he or others were not available at 8am to open The Desk Club pending the Claimant’s arrival at work.[46]There was no evidence before the Tribunal that the Respondent was struggling to cover the busier evening and weekend shifts or that other members staff, apart from the Claimant, wished to work day shifts or were pressing for a better mix of day, evening and weekend shifts. Mr Greatorex referred in his evidence at Tribunal to a significant turnover of staff in the period leading up to Ms Buttriss’ departure from the company. However, he confirmed that he had not spoken to those staff to understand their reasons for leaving and the Respondent did not adduce any other evidence as to their reasons for leaving. There was no evidence before the Tribunal that had the Claimant’s shifts been rostered according to her childcare responsibilities that other staff would have left or that it was impossible to accommodate the Claimant’s situation in January 2019. Mr Greatorex’s various assertions in this regard were just that, unsubstantiated assertions on his part.[47]Likewise, Mr Greatorex’s assertions that Health and Safety considerations precluded the Claimant from working the Tuesday morning shift and that she could not perform the line clear on a Wednesday were unsubstantiated. Mr Greatorex accepted that there was no risk assessment which identified the Claimant as being at particular risk had she been involved in the beer deliveries and there was no evidence either that she could not have been trained to undertake the line clear or that she was somehow incapable of learning this particular skill. In each case, Mr Greatorex presumed, without any proper basis, that she could not work the relevant shift on Tuesdays or Wednesdays[48]Critically, in our judgment, Mr Greatorex referred to other staff being employed on zero hours contracts. He may well have regretted the decision taken in April 2018 to guarantee the Claimant 20 hours of work each week, but he did not explain to the Tribunal why it was that shifts which could have been allocated to the Claimant in the light of her childcare responsibilities, were allocated instead to colleagues who were not disadvantaged in the same way that she was and who, on Mr Greatorex’s evidence, were engaged on zero hours contracts with no expectation of a minimum number of hours or any particular shifts.[49]Whether or not, as Mr Greatorex claims, the Respondent has a good track record of recruiting and promoting women, as we have noted in our findings above, Mr Greatorex’s mindset on 4 January 2019 was that the Claimant’s childcare responsibilities were not his concern, a position that was further amplified in his letter of 5 January 2019 in which he expressed his clear expectation that the Claimant must make suitable arrangements at home to work the shifts allocated to her, failing which her employment would be terminated. Through to the conclusion of the Final Hearing, including in his closing submissions, Mr Greatorex continued to refer to the circumstances giving rise to these proceedings as reflecting a preference on the Claimant’s part.[50]The overwhelming weight of evidence is that Mr Greatorex, and by extension the Respondent, did not undertake the necessary balancing exercise required by law. Notwithstanding he has articulated the Respondent’s aims in these proceedings, he has failed to set out a positive case as to why those aims might objectively be said to reasonably outweigh the discriminatory impact of the PCP upon the Claimant. The Respondent has accordingly failed to discharge the legal burden upon it and in these circumstances the Claimant’s complaint that she was indirectly discriminated against succeeds.[51]The complaint of direct discrimination does not succeed. The Claimant has failed to establish primary facts from which the Tribunal could properly conclude, in the absence of any explanation from the Respondent, that the Respondent directly discriminated against her. The Claimant has not identified any respects in which she was treated less favourably than her male colleagues, as opposed to her male and female colleagues. In so far as the Claimant was not offered shifts during the day that might have accommodated her childcare responsibilities, the various potential shifts identified by her were worked instead by both male and female colleagues. Her sex does not seem to the Tribunal to have been a differentiating factor in this regard. Instead, her Tribunal Claim has succeeded because a superficially gender neutral PCP impacted her disproportionately as a working mother and the Respondent has been unable to objectively justify it.[52]The matter will be listed for a Remedy Hearing. Notice of that Hearing will be sent to the parties separately together with any further Case Management Orders. 5 July 2021