Mrs M Ghouri v GE Beauty Glasgow Ltd: 4107095/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4107095/2024

Between

Mrs M GhouriClaimant

GE Beauty Glasgow LtdRespondent

Before

Employment Judge A Jones

Date 16 May 2025

JUDGMENT

The claimant was not unfairly dismissed and was not subjected to unlawful treatment in terms of the Equality Act 2010, and her claim is dismissed. Introduction

[1]The claimant lodged a claim on 24 October 2024 claiming that she had been discriminated against and victimised because of a disability, constructively and unfairly dismissed and that unlawful deductions from her wages had been made. The claim in relation to wages was withdrawn and an application to amend her claim to include a claim for breach of contract was refused. The respondent, which provides beauty services in concessions in Superdrug stores, initially did not accept that the claimant was a disabled person for the purposes of section 6 Equality Act 2010 (‘EA’), but having received further information from the claimant accepted that she did meet the test. However, the respondent’s position was that it was not and could not reasonably have been aware that the claimant was a disabled person at the material time. In addition, the respondent’s position was that the claimant was not dismissed.

[2]A joint bundle of documents was lodged for the purpose of this hearing. The claimant gave evidence on her own account and the respondent led evidence from Ms Lorna Young, their office manager. Parties made oral submissions on the conclusion of the evidence. The Tribunal was grateful to parties for the manner in which the proceedings were conducted.

[3]Parties had indicated that they intended to rely on communications which had taken place through ACAS in relation to this matter and both parties agreed to waive the confidentiality of those discussions. Issues to determine

[4]The issues to be determined were set out in the note of the preliminary hearing. These were now (as the wages claim had been withdrawn): i. Was the claimant a disabled person at the material time? ii. If so, was the respondent aware or ought it reasonably to have been aware that the claimant was a disabled person? iii. Was the respondent under a duty to make reasonable adjustments to reduce the disadvantage suffered by the claimant and in particular should the respondent have made the following reasonable adjustments: a) Offered the claimant the opportunity to work at Fort Kinnaird in order to reduce a disadvantage suffered by the claimant in relation to the requirements to travel to work. b) Offered the claimant somewhere to sit when at work but not performing specific tasks c) Permitted the claimant to drink water while on the shop floor. iv. Did the claimant do a protected act? v. Was the claimant subjected to a detriment for having done a protected act and if so by whom? vi. Did the respondent fundamentally breach the claimant’s contract of employment by failing to offer the shifts to which she was contractually entitled to work? vii. If so, did the claimant resign in response to that breach, and viii. Did she resign promptly in respect of that breach? Findings in fact

[5]Having considered the evidence, the documents to which reference was made and the submissions of the parties, the Tribunal found the following relevant material facts.

[6]The claimant commenced employment with the respondent around 15 November 2021 and reported to Ms Khan who was the manager of stores in the Edinburgh area. She discussed with Ms Khan what stores she would work in and initially she worked 3 days a week in Fort Kinnaird and 2 days a week in the Princes Street store. The claimant generally worked around 30 hours a week. The claimant was aware that staff could be required to work in whatever store in the area which required resource at the time.

[7]The claimant was not provided with a written contract of employment until August 2024 but had access to a staff handbook.

[8]In August 2022, the claimant’s daughter broke her arm and the claimant asked Ms Khan if she could work only from Fort Kinnaird for a time to allow her get home quickly to tend to her daughter. This arrangement continued until around January 2024.

[9]The shift pattern of the claimant altered on a number of occasions and when working only at Fort Kinnaird, she was working 24 hours over 3 days for a time.

[10]The claimant would generally receive a text message with the following week’s rota from Ms Khan.

[11]The claimant sent an email to Ms Young on 17 January 2024 complaining about various matters concerning Ms Khan. Having investigated matters, Ms Young responded to the claimant the following day by email explaining the background to the decisions causing concern to the claimant. In the email, Ms Young referred to the company handbook which stated that staff should be prepared to travel to any of the company sites on a temporary basis.

[12]The claimant was diagnosed with fibromyalgia and informed the respondent of this in June 2024 having had investigations carried out into health issues for a number of months.

[13]The claimant submitted a fitnote on 17 June for a month making reference to fibromyalgia and indicating that she may be fit for work with altered hours and amended duties. The claimant continued to work at both the Princes St and Fort Kinnaird stores between 18 June and 1 August. During this period there were discussions about whether the claimant could be permanently based at the Fort Kinnaird store.

[14]The claimant had recently moved home to Auchendinny from Dalkeith. The respondent’s store at the Gyle was the closest in terms of distance to the claimant’s home. The fitnote which had been provided indicated that the claimant may benefit from being based at a store branch nearer her place of residence, be provided with regular seated breaks and be allowed to have water with her.

[15]The claimant had been permitted to sit during her shifts at Fort Kinnard and have water with her.

[16]On 1 August 2024 the claimant was sent her shifts for the following week. These were all based at the Gyle. The claimant was working at Fort Kinnaird when she received this text and became unwell and went home. She did not return to work thereafter. She was offered shifts at the Gyle on the basis that this was nearest to her home.

[17]The claimant then informed Ms Khan and Ms Young that she was not going to work at the Gyle. She asked for a copy of her contract.

[18]The claimant asked Ms Young for a meeting with her around 2 August. Ms Young indicated that a meeting would be arranged and the claimant’s contract would be provided at the meeting. Ms Young indicated that the claimant was being offered shifts at the Gyle as this was nearer to her home and was a quieter store and therefore ought to be more suitable for her.

[19]Ms Young informed the claimant in an email of 1 August that they were looking at accommodating her wishes to work only from Fort Kinnaird but that they needed to speak to everyone involved and would get back to her.

[20]The claimant sent an email to a contact at Superdrug at Fort Kinnaird informing her of the position and asking if they had any vacancies at Fort Kinnaird.

[21]The claimant then raised a formal grievance on 8 August in an email to Ms Young. A grievance hearing was arranged for 4 September in Kilmarnock. The claimant indicated that she could not attend this meeting, because of her inability to travel that distance. The respondent then wrote to the claimant asking for her suggestion for a meeting place. No grievance hearing took place.

[22]The claimant had contacted ACAS on 14 August in relation to her employment issues. The claimant informed ACAS that she did not wish to discuss matters with the respondent directly any longer and only wanted to communicate through ACAS.

[23]The respondent decided to instruct Mr Russell to deal with the matter and contact was made with him through ACAS around 9 September.

[24]On 18 September, Mr Russell informed ACAS by email that the respondent was willing to move the claimant to the store she wanted and that they were seeking medical information in order to consider other reasonable adjustments. ACAS forwarded this email to the claimant on the same day.

[25]The claimant had been looking for alternative work from January 2024. She had formed the view that the relationship between her and the respondent had broken down from that point as she no longer got on with Ms Khan.

[26]The claimant had applied for a job in Premier Inn in Dalkeith around 15 September and was invited to interview for that role on 27 September. The claimant started in that new role on 27 September. The role was convenient for the claimant as her husband could drop her off at work on his way to work in the morning. The pay in the new role was also higher than the claimant had been paid with the respondent.

[27]The claimant submitted a letter of resignation on 23 September.

[28]The respondent sought to persuade the claimant to change her mind about resigning in a letter of 25 September. The respondent wrote again on 27 September asking the claimant to reconsider her resignation. The claimant said she was not willing to reconsider later that day and returned the respondent’s belongings on 8 October.

[29]Relevant law

[30]Section 95(1)(c) Employment Rights Act 1996 (‘ERA’) provides that an employee is dismissed if “the employee terminated the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”

[31]The duty to make reasonable adjustments is set out in sections 20 and 21 EA.

[32]Paragraph 20 of Schedule 8 of the EA provides that a person is not subject to the duty to make reasonable adjustments if he or she does not know, and could not reasonably be expected to know…..that an interested disabled person has a disability and is likely to be placed at a disadvantage by the employer’s provision, criterion or practice (PCP), the physical features of the workplace, or a failure to provide an auxiliary aid.

[33]Section 27 EA sets out the circumstances in which a person is victimised in that they are subjected to a detriment for having done a protected act. Discussion and decision Was the claimant constructively dismissed?

[34]The claimant’s position was essentially that the failure of the respondent to offer her shifts at the Fort Kinnaird branch amounted to a fundamental breach of contract. However, the claimant’s evidence before the Tribunal was that the breakdown in the relationship took place in January 2024 when she began to have issues with her line manager.

[35]The respondent’s position was that they were of the view that the claimant was a good worker and wanted to keep her. By the time of the claimant’s resignation, they had offered her everything she wanted and wished to take further steps to find out whether any other reasonable adjustments could be made. Unbeknownst to the claimant, the manager with whom she had difficulties had been under investigation by the respondent from around January 2024 and is no longer employed by them.

[36]In order for an employee to be entitled to resign without notice, the employer must have acted in a manner intended or likely to cause a fundamental break down in the relationship.

[37]In the present case, while the respondent may have acted quicker in offering the claimant shifts only at Fort Kinnaird and may have arranged for a grievance hearing somewhat sooner, these are not matters which amounted to a fundamental breach of contract. The explanation for the delay in the grievance hearing was because the person who would chair the hearing was on leave, albeit that this was not explained to the claimant at the time.

[38]In addition, the respondent made clear before the claimant had resigned that they would offer her exactly what she was asking for. It is therefore difficult to understand how the respondent’s actions could amount to a fundamental breach of contract in those circumstances.

[39]While it was recognised that the claimant had formed the view that the relationship between her and her manager had broken down, the issues could have been addressed by the grievance procedure. However, the claimant resigned before a grievance hearing could take place and would only communicate through ACAS. It was clear that by that stage she had lost all trust and confidence in the respondent.

[40]Given that the claimant did not resign until 23 September 2024, by which time she had been off work for almost 2 months because she felt she could not work the shifts being offered to her, she delayed too long in resigning. The claimant’s evidence was that she had been looking for other jobs from January and indeed that it was from that point that the relationship had broken down. Even if it could be said that it was from 1 August 2024 that the claimant was of the view that the relationship had broken down, and that was not her evidence before the Tribunal, she delayed too long in resigning.

[41]In any event, the Tribunal came to the view that the claimant had resigned because she had either already obtained or was confident that she was about to obtain alternative work nearer her home which suited her family circumstances better than any employment with the respondent whether at Fort Kinnaird or elsewhere. Therefore, the reason for her resignation was not the conduct of the respondent, who by the time of the resignation had offered her exactly what she was asking for, but the alternative employment which was more convenient for her and better paid.

[42]In these circumstances, the Tribunal concluded that the claimant was not entitled to resign without notice from her employment with the respondent and therefore her claim of unfair dismissal fails. Did the respondent fail in a duty to make reasonable adjustments for the claimant?

[43]The respondent’s position was that they were not under a duty to make reasonable adjustments as they did not know that the claimant was a disabled person at the material time. In addition, in so far as they could reasonably have known, they made all the adjustments the claimant requested.

[44]In relation to the question of the knowledge of the respondent, the claimant did not inform the respondent that she had been diagnosed with fibromyalgia until June 2024. The material period was between June and 8 October 2024. The claimant’s position appeared to be that the reference to her having fibromyalgia on a fit note ought to be enough for the respondent to be aware that she had a disability for the purposes of section 6 EA. She said that Ms Khan had carried out an internet search on the condition.

[45]There may be circumstances in which a simple diagnosis on a fit note is sufficient for a respondent to reasonably be aware that a claim is a disabled person. However, in the present circumstances, the Tribunal came to the view that the respondent could not reasonably be aware that the claimant was a disabled person at the material time. It did not have any medical records and all the fit note said was that the claimant ‘may benefit from…’ a number of matters. Certainly, the respondent ought to have taken steps to find out more, but that is what it proposed to do in September. The respondent did not know how the condition impacted upon the claimant at the time. She had kept working her shifts as normal up until 1 August despite the fit note and therefore the Tribunal concluded that the respondent could not reasonably be aware that the claimant was a disabled person at that time. It did not know how the condition impacted upon the claimant or what the prognosis was in relation to the condition or treatment for it. These are all matters the respondent would have been required to investigate within a reasonable period and while had the claimant remained in employment and investigations taken place it is almost certain that the respondent would have been under a duty to make reasonable adjustments, it did not have sufficient information at the material time such that it should have been aware that the claimant was a disabled person.

[46]In these circumstances, the respondent was not under a duty to make reasonable adjustments for the claimant.

[47]Even if the respondent had been under a duty to make reasonable adjustments, all adjustments suggested by the claimant’s GP had been made by the time of the claimant’s resignation. The claimant’s position in evidence was that the issue of a chair was not relevant, and that it had been agreed that she could have water with her when she worked. While the respondent could have made arrangements for the claimant to work from Fort Kinnaird until further investigations were carried out, any failure to make that adjustment only lasted for a period of around 6 weeks, during which time the claimant was not at work. As the claimant refused to deal directly with the respondent after involving ACAS and in view of the investigations the respondent was also carrying out in relation to Ms Khan and a number of other individuals, its failure to make this adjustment prior to 18 September was not unreasonable.

[48]Therefore, the respondent did not fail in a duty to make reasonable adjustments Was the claimant victimised because she did a protected act?

[49]The first occasion on which the claimant made a complaint about discriminatory treatment was in her grievance of 8 August 2024. The respondent accepted that this amounted to a protected act.

[50]However, the detriment the claimant complained of was being offered shifts in the Gyle on 1 August. That could not have occurred because the claimant did a protected act the following week.

[51]Therefore, her claim of victimisation is bound to fail. Conclusions

[52]While the Tribunal accepted that the respondent could have handled matters concerning the claimant differently, and it accepted that there were issues in relation to how the claimant had been treated by Ms Khan, more was required in order for the claimant to succeed in her claims. The Tribunal had no doubt that the claimant genuinely believed that she had been unfairly treated by the respondent, but that is not sufficient to make out a claim of unfair dismissal or disability discrimination.

[53]In these circumstances, the claimant’s claims fail and are dismissed.