Background: 

The claimant was employed as a security guard from 2016.  The contract of employment expressly had a flexibility clause citing the needs of the business.  The claimant has a young daughter and this is relevant to these proceedings considering there was a difficulty custody battle and at the end of that the claimant had full custody of his daughter.  

The issue arising related to the claimant’s availability for work and his flexibility.  The Tribunal outlined a series of months were no or a very limited number of shifts.  There were other months in which the claimant had to be chased for his availability.  The claimant stated in June 2022 that he could only work Mondays and Thursdays.  The respondent tried to allocate him those shifts but when allocated they were refused by the claimant.  

An issue arose in August 2022 when the claimant missed a shift.  The claimant argued that he had not confirmed his willingness to take the shift and stated that the control department were lying when they said he had.  This issue of shifts continued until November when he was told his job was at risk.  The claimant cited that he had childcare responsibilities.   This series of issues led to a disciplinary meeting where a decision to dismiss was made due to the lack of availability and the lack of forthcoming availability (the claimant stated that he would have more when his daughter turned 3).  

Outcome: 

The claimant brought a claim for sex discrimination citing that a woman in the same situation would have received more leniency and been treated with more care. The Tribunal noted that the claimant is under a burden to point to more than just a mere difference in treatment.  The claimant should point to a genuine difference in treatment or less favourable treatment based upon his characteristic. There was no evidence put forward by the claimant to establish that a woman in the same circumstances would have been treated more favourably.  This would have amounted to showing a woman who was a sole parent and had only worked 6 shifts in two years and received more leniency.  Accordingly, the Tribunal held that the burden had not shifted to the respondent.  

For unfair dismissal, the respondent stated it was for some other substantial reason.   This was due to the lack of availability and the lack of flexibility.  Therefore, this lack of availability coupled with a lack of demand at the claimant’s site meant the employment was not sustainable. The Tribunal held that this decision to dismiss fell within the band of reasonable responses 

Practical Guidance for Employers: 

The Tribunal noted that the claimant was in a minority by virtue of being a male with the sole parenting responsibilities.  That, in itself, did not allow for a right relating to discrimination.  Instead, the Tribunal noted the claimant had to demonstrate evidence of how a woman in the same situation would have been treated more favourably.  Considering the level of flexibility that was offered this was not demonstrated to the Tribunal. It was also interesting to note that the reason for the dismissal, despite the lack of compliance with the employment contract, was some other substantial reason rather than misconduct.        

The full case can be found here:  https://www.gov.uk/employment-tribunal-decisions/mr-s-bucknor-v-bidvest-noonan-uk-ltd-2201364-slash-2023