Employment Tribunal

Did the refusal of an employee’s flexible working request amount to a constructive dismissal?

All employees with 26 weeks’ continuous service have the right to make a flexible working request (FWR).  

Employers must reasonably and objectively consider the FWR and can only reject the request on a specified business grounds.  The rejection of a FWR can sometimes lead to claims of constructive  unfair dismissal and/or indirect sex discrimination.  Nottingham ET recently held than an employee’s FWR had been rejected on incorrect facts and that she has been constructively unfairly dismissed.

The employee, P, worked as a product lifecycle planner for a business involved in warehouse management.  During her eight years with the business, P’s hours of work had varied from time to time for a variety of reasons including FWR’s made by P.  In April 2019, P made a new FWR to allow her to accommodate the childcare needs of her daughter who has Downs Syndrome.  At a series of meetings held in May 2019, P was informed that her FWR was rejected, and she was unexpectedly and without warning told that in four weeks’ time her hours of work would increase to 32.5pw with a new requirement to work until 4.30pm.  P raised a grievance and then resigned alleging that the outcome of her FWR and the unilateral change to her working hours amounted to a fundamental and unreasonable breach of her contract.

When considering P’s claims, the ET found P’s line manager, M, to be a ‘defensive and far from straightforward witness’. M had rejected P’s FWR in part because she felt P appeared ‘to change [her] working pattern on an almost daily/weekly basis’  when the evidence did not support that conclusion.  The ET accepted that an increase in work was anticipated but held that M had not properly considered how much of this extra work could be spread amongst P’s colleagues.  M had also ‘closed her mind’ to allowing P to work partly from home because M disliked homeworking in general.   The ET noted that the response to P’s grievance said ‘the business does not accept working from home requests when there is a concern that it is being used as child care for young children because in our opinion, employees are more likely to be distracted and are less efficient’.  The ET held that this attitude towards P working at home was unreasonable in the absence of a trial period to see if it could work in practice.  The ET also held that the employer did not have the contractual right to unilaterally increase P’s hours of work.  The ET upheld P’s claims that her FWR had been rejected on incorrect facts and held that she had been constructively unfairly dismissed. 

The ET awarded P £22,319.09 compensation

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