Ms S D Duca v The Nail and Beauty Zone Ltd: 8002213/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8002213/2024

Venue Glasgow

Hearing 26 February 2025 Deliberations on 28 February 2025

Between

Ms S Di DucaClaimant

The Nail and Beauty Zone LtdRespondent

Before

Employment Judge D Hoey

Mr M Lumsden for respondent

Director for respondent

Date 13 March 2025

JUDGMENT

The respondent had not made an unlawful deduction from the claimant’s wage pursuant to section 23 of the Employment Rights Act 1996 and the claimant’s claim is ill founded and it is dismissed.

REASONS

[1]This was a claim for unlawful deduction of wages. The claimant’s case was that the respondent was contractually due to provide her with a fixed number of shifts each week and the failure to provide her with the shifts to which she was guaranteed meant she had been underpaid. At the Hearing the claimant confirmed that her claim was related only to one week when she claimed she had not been given any shifts (the week of 6 October 2024) as the claimant accepted she had been offered the requisite number of shifts in the other were (the week of 20 October 2024). That was a fair concession to make. The respondent argued it had offered the claimant shifts in excess of that to which she was contractually entitled.

[2]The Hearing began by a reminder of the overriding objective and the need for both parties to work together to assist the Tribunal in ensuring that everything that was done was fair and just with due regard to cost and proportionality. A discussion took place as to how evidence was taken and while some evidence was agreed there were a number of disputes, the key one being the claimant had been offered shifts in the week in question. The parties were reminded that the Tribunal would only consider evidence that had been agreed or that was led before it.

Evidence

[3]The parties had produced a joint bundle of 154 pages. The Tribunal heard evidence from the claimant and Ms Cairney (regional manager who managed the shift rota). Relevant questions were put to each witness.

Facts

[4]The Tribunal is able to make the following findings of fact which it has done from the evidence submitted to it. The Tribunal only makes findings that are strictly necessary to determine the issues before it (and not in relation to all disputes that arose nor in relation to all the evidence led before the Tribunal). The Tribunal only records facts it found as necessary to determine the issues in this case.

[5]Where there was a conflict in evidence, the conflict was resolved by considering the entire evidence and making a decision as to what was more likely than not to be the case with regard to what was written and said at the time (when viewed in context).

Background

[6]The respondent is a company which provides spa and related facilities with a number of locations throughout Scotland. The claimant was employed as a therapist and had a contract with the respondent which was signed on 11 April 2023. As to “place of work” her contract said that “Your place of work is 114 West Nile Street, Glasgow. You will be given reasonable notice of any change to your place of work. You will be required to work at all locations within the PURE group of salons as business need dictates.”

[7]As to “Hours of work” the contract stated “Due to the nature of its business the company operates seven days a week under a rotating 6 week shift work system. You will work under this system as a rota’d worker which means you do not have normal hours of work. You will be required to work 32 hours each week in accordance with a rota which will be provided in advance. The company reserves the right to change the frequency of publication of the shift rota or the timing of any shifts at any time according to the needs of the business. The company will give you reasonable advance notice to either the frequency of publication of the shift rota or the timing of any shifts. Your basic hours of work are 32 hours a week. Your working pattern will be agreed between yourself and your line manager”.

[8]On 1 October 2024 the respondent wrote to the claimant as follows: “Late last week we received advice from the owners of the building at West Nile Street as follows: “I wanted to make you aware of some temporary works which we will be undertaking immediately along Buchanan Street, and which will impact access to your store. Whilst undertaking construction works to a new shopfront at 185-221 Buchanan Street, our engineering team identified potential issues with the stone façade. These issues are limited to specific sections of the stonework and do not impact the structure of the building. To enable further investigation and ensure the safety of the public, residents and staff, our façade consultants have recommended that access to the areas directly underneath the impacted stonework be restricted. We are taking a cautious approach to this and will therefore be installing temporary fencing to restrict access to these areas before replacing this with a more structured solution which will enable us to complete the required works. This is likely to involve installing protective scaffolding as an immediate next step whilst long term remediation is carried out. As a result of these restrictions, there will be no access to your store for at least the next few days. This message has been shared with your team operating your Glasgow store, and our team in the centre are working closely with them to provide support during this time. We recognise the disruption and inconvenience this will cause, and our team are working urgently to restore access as soon as possible. More widely, I also want to assure you that we have a comprehensive risk assessment plan in place across the wider Buchanan Galleries estate and across our entire portfolio to make sure our buildings are safe, including regular surveys and inspections. When we identify potential issues, we work closely with external structural engineers to respond appropriately. As long-term custodians of the places we build and manage, all our properties are maintained to the highest standards. I will contact you again with any further relevant updates but in the meantime, please don’t hesitate to let me know if you have any questions.”

[9]The letter continued: “On Friday afternoon we received a phone call from the owners of the building advising that they expect us to have no access to the spa until 14 October 2024. During this time, they will be installing the protective scaffolding required to make the area safe for pedestrians and occupants. This date is subject to change, so they undertook to keep us informed of progress until the works are completed. As we had no warning of this situation, we were unable to give you notice that there would be an impact on your work location and schedule as has resulted. Our first priority has been to notify clients and attempt to move them to other PURE locations for their appointments as well as to redeploy the West Nile Street team members to other PURE locations to meet client demand. We can only apologise for any inconvenience this situation has caused you and thank you for the flexibility the West Nile Street team have shown in response to this unforeseen temporary closure. Whilst the West Nile Street closure persists, we will endeavour to provide you with your normal working hours at alternative PURE locations. We understand that this may require you to travel additional distances to work and potentially require you to work different shifts to those that had been planned at West Nile Street. Financial support will be provided to account for your additional travel costs and time. Siobhan is working with the spa managers to schedule everyone, and we appreciate your support and flexibility in making the best of the situation. We encourage you to see this as an opportunity to develop and share your skills and experience by working in a different PURE spa environment – potentially a hotel or leisure club or in a different part of Scotland such as Edinburgh, Peebles, Aberfeldy, Renfrew or Hamilton. This will be a chance to meet and work with colleagues and clients in the different locations and broaden your base of contacts and experience. Should you decide not to make yourself available to work in one of the other locations during the West Nile Street closure, there is the option to take annual leave that you have accrued. Any requests for annual leave should be made through the normal process. If you do not have annual leave accrued, the option for leave without pay is also available. We very much appreciate the flexibility the West Nile Street team have shown to date in response to the temporary closure and we will keep you informed as and when we have more news on the re-opening date.”

[10]Prior to this issue arising in relation to the claimant’s place of work, a rota had been issued setting out the shifts the claimant had been offered. A week ran from a Sunday to a Saturday in terms of the rota. Offering alternative shifts

[11]As the claimant’s place of business was closed, the respondent sought to identify other shifts that became available (often at short notice) in other branches. That included in Glasgow, Renfrew, Hamilton and Peebles. The respondent had offered to assist with regard to travel costs and travel time to assist those affected by the closure of their branch and to ensure sufficient shifts were offered to each affected team member.

[12]The staff who had been engaged in West Nile Street, where the claimant was based which was closed, were on a “WhatsApp Group”. That included the claimant and around 8 colleagues. This was a message service that allowed those in the group (which included the regional manager who offered shifts) to communicate messages to everyone within the group. The respondent used that as a means to keep in touch with those affected by the closure. Thus if shifts became available they would be placed on the group and those who wished to work the shifts could put their name forward. Staff knew it was first come first served.

[13]On 3 October 2024 a message was placed on the WhatsApp group advising that there were shifts available on Sunday 6 October 2024, Wednesday 9 October 2024 and Saturday 12 October 2024. This amounted to the claimant being offered 3 shifts. The claimant did not accept the offer of these shifts.

[14]A further message that day said: “Anyone up for Peebles at all. Good chance to make up hours ladies”. This was an example of the respondent seeking to find alternative hours for the claimant and her colleagues given the closure of the West Nile Street branch.

[15]On 7 October 2024 (at 1757) a message was place on the WhatsApp chat offering a shift in Edinburgh the following day. The claimant did not accept that shift.

[16]On 30 September 2024 the claimant had been told that she would be offered a shift on 6 October 2024 in Renfrew but on 2 October 2024 the claimant told Ms Cairney she would not accept the 6 October shift in Renfrew as she did not consider the travel safe. A discussion ensued with the respondent in an attempt to assist the claimant (as she had taken a train and walked, rather than taken the bus, which was her choice).

[17]On 5 October 2024 the claimant told Ms Cairney that she had been on the original rota to work shifts on 7, 8 and 9 October 2024. Ms Cairney replied with a message saying: “Only a shift for 9th for you so far” with a picture. The picture attached to the message seemed to be a handwritten table with names and boxes but it was not possible to understand what had been sent (and the message did not explain what the picture was said to be nor refer to it in the message).

[18]The claimant was then offered a shift the following day (which was sent to the claimant at 9.51pm). The claimant did not reply that night and at 4.51pm on Sunday 6 October 2024 she asked if there was any availability on Monday and Tuesday. She was told there was no availability at that time. She asked at 6.30pm on Tuesday 8 October 2024 if she was still working on Wednesday 9 October 2024 (which was a shift she had been scheduled to cover).

[19]The claimant was told she was not in the diary. The claimant asked what she was to do (at 6.26pm). At 9.41pm the claimant was told that there had been a mix up and Ms Cairney was waiting to hear if she was on holiday or not and the claimant was offered a shift on Wednesday 9 October. The claimant did not receive the message prior to going to bed and did not respond to it then or the following morning when she read it. The claimant had originally been scheduled to be on shift that day.

[20]The claimant was on leave the following week (and was paid leave for 14 to 17 October 2024) and the next message that she sent was on 18 October 2024 saying that she was back from holidays and looking for shifts.

[21]On the WhatsApp Group chat the claimant was told on 9.52pm on Tuesday 8 October 2024 that a Glasgow shift was available. The claimant was not aware at that point and did not respond when she read the message the following morning.

[22]On 10 October 2024 a message was placed on the WhatsApp group noting that shifts were available at Peebles and Edinburgh Observations on the evidence

[23]The claimant had done her best to recall matters in the giving of her evidence. She had genuinely believed that she had not been offered what she was due within a two week period but upon considering the evidence that was put to her, she candidly accepted that she had been offered sufficient shifts in the second week. She had also been fair in saying that she was only seeking a sum representing 2 days for the other week since although in fact she had not been offered any shifts, there had been a mix up with 2 shifts and she wished therefore only to seek payment in respect of the remaining 2 shifts. That demonstrated how reasonable the claimant had been and that she genuinely believed she had not been offered what she thought due to her.

[24]The situation facing the claimant (and the respondent) was clearly unsettling and caused challenges. The matter arose within a short period of time and the respondent tried to work with its staff to meet its contractual obligations. The claimant also faced a number of challenges given her personal circumstances with regard to work locations and shifts which explained why she felt that she had not been offered shifts which she considered suitable for her (which was a different matter as to whether shifts were offered to her in terms of her contract).

[25]With regard to the week commencing 5 October 2024, the claimant maintained she had not been given any shifts. However, once the contemporaneous records were presented to her in evidence, the claimant conceded that she had been offered 1 shift (at Renfrew on 6 October). She chose not to accept that shift but it was a shift that went towards her contractual entitlement.

[26]The claimant candidly accepted she had been offered 4 shifts in the subsequent week which was again evidence of the claimant’s reasonable approach to this issue. She fairly accepted the position once the evidence, which was not always clear, was presented and explained to her.

[27]The issue had arisen because the claimant believed that placing shift availability on a group chat (and thereby offering shifts to staff) did not amount to offering her shifts in terms of her contract. She argued she had gone for shifts during that week but not been given them but she was mistaken perhaps with another week where this might have happened. There was no evidence she had asked to do a shift on the group chat which was refused to her for the week under consideration. For the week in question a number of shifts were offered to her both directly and via the group chat. The claimant may have thought that someone had got in first, but in fact no one had done so and the shifts offered to the claimant were still available and had she accepted the offer, she would have been given the shifts so offered.

[28]Ms Cairney gave her evidence in a clear and consistent way. She recognised the impact the situation had upon staff and the claimant and was sympathetic and tried to support the claimant and find suitable shifts for her. She also candidly accepted that sending a shift after 9pm when the claimant was in bed would not be a reasonable offer in terms of the contract.

[29]The key dispute had been whether the claimant had been offered shifts in the week in question. In terms of the claimant’s contract, there was no requirement shifts be offered directly to her and shifts could be offered to the claimant directly or via the group WhatsApp provided the shift was one which the claimant would in fact be given. Had the claimant gone for the shift in question and not been given it (such as where someone else had applied for it first, obviously that shift would not count in terms of contractual entitlement).

[30]The claimant’s contract allowed flexibility in terms of place of work. Her place of work was the West Nile Street branch but she could be asked (and was asked) to work at other locations as business need dictated (as it did in this case). The issue in this case is not whether it was reasonable or not for the claimant to accept the offer of shifts, but rather, whether as a matter of fact the respondent had made a reasonable offer of the relevant number of shifts for the week in question.

[31]In terms of the claimant’s contract she was entitled to be given an offer of 4 shifts in each week. It was then for the claimant to decide whether or not to accept the offer of the shifts in question. The offer should be reasonable in the circumstances (which would be viewed objectively taking account of the respondent’s and claimant’s circumstances as existed at the time of the offer in question).

[32]The claimant contended that asking her about a shift after 9pm to work the following day would not be reasonable given she was unlikely to read the message until the following morning. Equally, however, asking the claimant prior to 9pm when she is able to consider whether or not to work the shift in question, would be reasonable notice and she would be able to decide whether or not to accept the shift. The claimant had herself asked about working shifts the following day (on Sunday 6 October at 4.51pm for example when she asked about shifts the following day).

Law

[33]In terms of sections 13 and 23 of the Employment Rights Act 1996, where the sum paid to the worker is less than that properly payable in terms of their contract, the Tribunal can make a declaration to that effect and award the sum due.

[34]Failure to provide a worker with shifts due to them in terms of the contract (which the claimant would have worked) could lead to an unlawful deduction of a wage since the worker may ultimately be paid less than the sum properly payable under the contract. Discussion and decision

[35]This case arose due to matters outwith the parties’ control. The respondent had been told that their premises were being closed to allow construction works to be carried out. The respondent sought to identify alternative shifts for its staff and work with the availability it had in terms of other premises. That necessarily led to short notice offers (a matter that would reasonably have been known by the claimant given the nature of the work being done and other premises and numbers of staff)

[36]The claimant was entitled to be offered 4 shifts per week. The respondent recognised the closure of West Nile Street meant that staff may require to travel and put in place some support to assist in that regard, thereby allowing staff to work elsewhere with little, if any, financial impact.

[37]The claimant accepted the only week in which she was arguing she had not been offered her contractual entitlement was the week of 5 October 2024.

[38]The claimant initially said she had not been offered any shifts for the week of 5 October 2024 but upon being taken to the material issued at the time accepted she had been offered a shift in Renfrew on 6 October 2024. While she chose not to accept that offer, it was an offer of a shift for the claimant (pursuant to her contract).

[39]The claimant did not accept that offering all staff shifts on the group WhatsApp was an offer of shifts but she did accept that if she accepted the shift in question and was given work, the respondent would have met its contractual obligations. (Conversely if the claimant had asked to do a shift that was on the group chat but it had been taken, the shift would obviously not count). Offering shifts on the WhatsApp group was a fair and reasonable way to offer shifts given the circumstances facing the parties and nature of the work and how it would become available, for example because of illness or last minute bookings. There was no specification within her contract as to how shifts were to be offered, the only requirement being that 4 shifts were offered to her each week. If the shift was not in fact given (such as if the shift was no longer available as someone else had asked to do it first), the shift would obviously not count in terms of the contractual position but it could not be said that an offer was not made just because the offer was on the WhatsApp group. Workers were given the offer of shifts and it was up to them to decide whether to accept them or not. The fact an offer was not made personally and directly to the individual worker did not deprive the offer of the status of being an offer to provide the shift in question provided it was an offer of a shift that was available. The claimant’s contract did not require offers to be made directly and personally to her, even although that was what the claimant believed.

[40]Any such offers, however, had to be made reasonably. That was because the contract said that: ”The company will give you reasonable advance notice to … the timing of any shifts”.

[41]In addition to the shift she was offered for 6 October 2024, the claimant had been offered a shift on 8 October 2024 in Edinburgh (with the offer made on 7 October 2024). That was a reasonable offer to make and the claimant had a reasonable opportunity to decide whether or not she wished to work that shift. The offer was made just before 6pm the preceding day. There was no suggestion the claimant had not been given reasonable notice of that shift or that she had not read the offer.

[42]In addition to the offer of shifts for 6 and 8 October 2024, on 3 October 2024 the claimant had also been given the opportunity to work on 9 and 12 October that week. She chose not to take those shifts but they were offered to her and she did not accept the offer. Reasonable notice had been given for those shifts.

[43]There were other shifts offered to the claimant during the week in question but those shifts were not offered to the claimant within a reasonable period of time (and often the claimant only learnt of their existence on the day in question when she woke up). Respondent complied with its contractual obligations

[44]From the foregoing, the claimant was offered 4 shifts in the course of the week in question. The 4 shifts to which she was offered were shifts in respect of which reasonable notice was given. The claimant may well have had good reason to refuse the offer to work the shifts in question, but the respondent had complied with its contractual obligation and the complaint is therefore ill founded.

[45]The claim is dismissed.