Conway v Dunnes Stores (Bangor) Ltd  (Sex Discrimination/Unfair Dismissal)  (22 July 2003)
THE INDUSTRIAL TRIBUNALS 

CASE REF:	2944/00

APPLICANT:		Mrs Julie Conway

RESPONDENT:		Dunnes Stores (Bangor) Limited

DECISION

The decision of the Tribunal is that the respondent did not unlawfully discriminate against the applicant and that she was not constructively and unfairly dismissed.

Appearances:

APPLICANT:	David Dunlop, Barrister-at-Law, for the applicant instructed by MacAllister Keenan & Co, Solicitors.

RESPONDENT:	Mr Martin Wolff, Barrister-at-Law, for the respondent instructed by Tughan & Co, Solicitors.

1.	The applicant was employed as a sales assistant by the respondent from 1985 until in or about November 2000.  Prior to February 1998 she worked 20 hours per week in the morning Monday to Friday which suited her as she had two young children born in 1993 and 1997.  In 1998, the applicant was asked, along with other part-time assistants to work one afternoon per week.  They reluctantly agreed.  It was the applicant’s case that -

	(a)	the assistants were told that this would be a temporary arrangement, for one month.

	(b)	her requests to revert back to all morning shifts went unheeded by her manager.

	(c)	all other part-time assistants were allowed to change back to morning shifts only but she was not.

2.	The applicant went on extended maternity leave on 22 October 1999 and up to that point she was still working one afternoon shift per week.  She returned to work on or about 19 July 2000 and worked sixteen hours per week including an afternoon shift.  It was the applicant’s case that she made repeated efforts to go back to her pre 1998 position ie. all morning shifts and twenty hours per week but without success.  She was told allegedly that staff taken on during her maternity leave would receive priority to her.  Instead of giving her the pre-1998 hours, the manager kept her on sixteen hours a week with an afternoon shift and began to ‘juggle’ her shifts around so that she would not know which shifts she was working.  She had no set routine.  She felt also that she was being treated in an unpleasant manner by her manager, that her integrity was being questioned since she no longer had responsibility for the till and that she was demeaned by having her hours set by a fellow assistant with less service who was friendly with the manager.

3.	The applicant alleged that her childcare needs were such that it would not pay her to work on an afternoon shift.  She arranged a meeting with her manager who, allegedly, told her that if she did not work the allocated hours, then she was no good to him.  In response to her request for a return to the pre-1998 arrangement, the manager allegedly said ‘tough - it is your problem’ and suggested that she work the afternoon shift on the next day.  He then allegedly threatened to give her all afternoon shifts and when told he could not do so, allegedly said - ‘watch me’.  The applicant contacted the respondent’s Head Office by telephone and outlined her concerns.  She was told there would be an investigation and would be telephoned on the following day.  When she got no call she was told that since the manager disputed her version there was nothing which could be done.  The applicant alleges that she resigned after this meeting in November 2000.

4.	On the facts, we are not satisfied that the respondent cut the applicant’s hours against her will from 20 hours to 16 hours when she returned from maternity leave.  We are satisfied that she was required to work an afternoon shift when she returned as she was required and agreed to do from February 1998 until she went on maternity leave.  We are satisfied that her allegation that all the other part-time staff were allowed to revert to morning working is incorrect and that she was treated no differently from other part-time staff apart from one other staff member for justifiable reasons.

	We are satisfied also that there was no juggling of the applicant’s hours as alleged.  And we have no grounds upon which we could draw any inference, that the applicant was treated less favourably because she went on maternity leave or extended maternity leave.  We feel that because the applicant did not get her way, she inflated her grievance in an entirely unacceptable way.

5.	The applicant claims that the requirement to work one afternoon shift per week was indirectly discriminatory and unlawful under Article 3 of the Sex Discrimination (NI) Order 1976, ie. her employer applied to her a requirement or condition which he would apply equally to a man but that requirement or condition was such that the proportion of women who could comply with it was considerably smaller than the proportion of men who could comply with it.  She did not identify a pool for the purposes of such comparison.  All of the till operators employed by the respondent in the store were female and they all complied with this requirement.  No statistical evidence was provided.

6.	The applicant replied upon London Underground Ltd -v- Edwards [1977] IRLR 157 in which a new rostering arrangement was held to be discriminatory because a considerably smaller proportion of female single parents could comply as compared to male single parents.  The Employment Appeal Tribunal allowed an appeal on the grounds that the correct pool was that of all train operators to whom the new rostering arrangement applied.  We do not see that this case assists the applicant.  We know only of the assistants in the applicant’s place of employment - all female and all working one afternoon shift.  We are not satisfied that the respondent imposed a requirement or condition which impacted adversely upon female workers.  Accordingly we do not accept that the applicant was discriminated against either directly or indirectly on the grounds of sex.

7.	The applicant alleges that she was constructively and unfairly dismissed because the respondent would not allow her to revert to her original hours, ie. all morning working, and would not deal with her grievance.  She alleged that a failure to provide and implement a grievance procedure amounted to a breach of the contract of employment which was sufficiently serious to justify her resignation and she relied upon W A Goold (Pearmak) Ltd -v- McConnell [1995] IRLR 516.  We have no evidence of a contractual grievance procedure operated by the respondent.  We have clear evidence of attempts by the applicant’s solicitor, prior to her resignation, to seek an internal resolution of the applicant’s grievance.  Unfortunately, those attempts were on the premise that the applicant’s hours should be immediately reinstated to those which she worked before the 1998 change failing which the applicant threatened legal action.  And it was alleged that the applicant was being sexually discriminated against because of her maternity leave and being subjected to a number of other unfair practices.  She was offered and rejected a meeting with her store manager ‘to resolve this issue in line with current employment legislation and company policy’.  Through her solicitors she rejected this offer as inappropriate given past difficulty with her manager.  She sought at least the presence of someone from personnel by letter dated 19 September 2000 and was told by the respondent, in a letter dated 26 September 2000 to her solicitor, that she would be contacted as soon as possible.  She was not contacted.  The applicant went off on sick leave (stress) on 5 September and resigned on or before 8 November 2000.  In  her originating application, she alleged that she was sexually discriminated against due to her maternity leave and unfairly dismissed due to the intolerable conditions under which she was obliged to work.

8.	We do believe that the respondent was unreasonable in their approach to the applicant particularly in not coming back to her or her solicitor in relation to a meeting with personnel.  However we do not believe that this unreasonableness constitutes a fundamental breach of the applicant’s contract of employment.  Furthermore the applicant at the time alleged that she was resigning because of the discrimination in relation to her maternity leave and the intolerable conditions to which she was subjected.  We really had no evidence of discrimination on the grounds of maternity leave.  We had no evidence of what could be called intolerable working conditions.  We believe that the applicant inflated her complaints in order to get her own way and 

	changed her story to allege resignation because of a failure on her employer’s part to follow up her grievance.  We dismiss the complaints of unlawful sex discrimination and unfair dismissal.

____________________________________
J E MAGUIRE
President

Date and place of hearing:	10/11 January, 22 July 2002, Belfast

Date decision recorded in register and issued to parties: