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3 Things We Learnt In Law This Week (18 April 2019)

Holland & Barrett Employee Wins Overtime Case

A tribunal has ruled that Holland & Barrett made unlawful deductions from the pay of an employee who was required to carry out tasks beyond his contracted hours.

Mr Fitz was employed as a supervisor and was required to cover for the store manager if they were absent. This required opening the store in the morning and closing the store in the evening, among other tasks that needed to be completed during opening hours.

Closing the store involved four stages: closing the tills on the shop floor; reconciling the tills in the back office; closing the register and locking up the store, all of which Holland & Barrett told the tribunal took a few minutes. However, Fitz claimed that he also had to undertake other additional tasks at the end of the day, such as cleaning, checking the fridge and freezer temperature, and performance and sales target calculations. He claimed he had clocked up over two hundred hours in overtime after his contracted shifts were due to finish, for which he was not paid.

The retailer’s area sales manager told the tribunal that it is common practice across the retail sector for managers not to be paid for time spent closing a shop.

However, the tribunal found that as Fitz was employed on a fixed hours’ contract, it was implied that that he – and any other employee with fixed hours – would be paid for any overtime they carried out.

Holland & Barrett was ordered to pay Fitz £1,019.75 in compensation for the overtime worked.

Royal Mail Driiver Told She Should Be ‘In The Kitchen’

A Royal Mail driver who was told she should be “back home and in the kitchen” has won £2,600 in compensation for injury to feelings.

An employment tribunal found that Ms Nixon, who worked as a driver at Royal Mail’s national distribution centre in Northampton, was bullied and harassed by a male co-worker because of her sex.

During an overnight shift on 17-18 March 2017, Nixon claimed the co-worker, Mr Mistry, had pulled and attempted to pull her hair; stated that she should be “back at home and in the kitchen”; accused her of trying to get out of her duties; and called her and another colleague “arsey”.

Mistry had occasionally acted as her line manager. Nixon made a formal complaint about his behaviour and he was immediately removed from managerial duties. The incident resulted in Royal Mail offering all staff additional training on bullying and harassment.

The tribunal found the suggestion that she should be “in the kitchen” related to Nixon’s gender and therefore amounted to harassment and sex discrimination.

While Royal Mail argued that Mistry could as easily pull long hair worn by a male employee, employment judge Christopher Gaskell said that “boys pulling girls’ hair has been an act of sexual harassment since most of us were children in the playground”. “In our judgment, therefore this particular effort at creating discomfort or humiliation was clearly related to gender and is an act of harassment for which the claimant is entitled to a remedy,” the judgment, issued last month, says.

Police Force ‘Discriminated Against White Heterosexual Male’

A police force which rejected a “well prepared” potential recruit because he is a white, heterosexual male has been found guilty of discrimination.

Mr Furlong, 25, whose father is a detective inspector in Cheshire Police, applied to join the force in 2017. When he lost out to other candidates, his father lodged a complaint.

An employment tribunal ruled the force had used “positive action” to recruit people with different characteristics, but in a discriminatory way.

The tribunal in Liverpool ruled Mr Furlong had been a victim of direct discrimination on the grounds of his sexual orientation, race and sex. It ruled that while positive action can be used to boost diversity, it should only be applied to distinguish between candidates who were all equally well qualified for a role.

The force’s claim it had seen 127 candidates who were equally suitable for the role of police constable was a “fallacy”, the tribunal ruled, and imposing such an artificially low threshold – assigning candidates a pass or fail rather than any kind of score – was not a proportionate response to addressing the force’s lack of diversity.

The case has been adjourned until later this year for a remedy hearing to determine the amount of compensation to be awarded.

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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