Background:

The claimant was employed as a Housekeeper by the respondent trust from June 2014 until November 2022 when her resignation on notice took effect.

The claimant had a son with complex needs, and this necessitated the claimant’s attention. The claimant took the view that the respondent should have allowed her to work from home for a significant part of the day. The Tribunal noted that such a position was taken regardless of the impact it had on the services being provided. The discussions between the claimant and respondent took place between April 2020 and November 2022. As a result of working from home not being a possibility, according to the respondent, the claimant brought claims relating to Flexibility Working Regulations, relating to her own alleged disability and unfair dismissal.

Outcome:

The Tribunal made repeated points about the claims being ‘entirely unclear’ but sought to deal with them in turn.  On the claim relating to the Flexible Working Regulations the Tribunal noted that such a right is subject to specific restrictions. This requires the application to outline that it is such an application, note the change applied for, the date it would come into effect and the effect it would have on the employer and how it could be dealt with. The claimant referred to verbal requests which do not meet the criteria. There were some written requests. The first was an email but did not state it was a statutory application nor did it specify the change.  The subsequent two fail on the same grounds as they did not state it is for flexible working as per the legislation.  Accordingly, the legislation was not engaged, and this claim was dismissed.

The claimant claimed for constructive unfair dismissal where the Tribunal considered the significant and repeated efforts of the respondent to accommodate the claimant and her caring obligations towards her son. The Tribunal noted that the claimant had been off sick for over a year at the time of her resignation and coincided with her obtaining a job offer from another employer. As a result, it was found that there was no repudiation of the contract and that the reason or the resignation was due to obtaining another job.

Another claim of associative disability discrimination based upon her son’s disability was also made. The claimant referred to other employees who she suggested had been allowed to work from home. The first of those comparators had not been permitted to work from home and the second had done some tasks at home during the pandemic and the Tribunal regarded those aspects as ‘minimal; and was not in line with the significant ask of the claimant in terms of working from home. The Tribunal found that there had been significant efforts to assist but working from home was not possible in the claimant’s role as it would have an effect on the service and her colleagues. Accordingly, this claim was dismissed.

Practical Guidance for Employers:

Whilst the right to flexible working rules may be changing soon this demonstrates the rights and obligations when it comes to making those requests.  The Regulations place very clear obligations on the employee when making such an application which also include the need to bear in mind the impact on the employer and how such an impact could be overcome.  The fact that the alleged requests did not mention it was a statutory request meant that it did not have to be fully considered in line with the legislative requirement.

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/