The claimant was employed as a customer adviser in a call centre by the respondent from 4th April 2018 until she resigned on 14th October 2019. There were two claims lodged. The first was when she was still employed and was on the basis of discrimination on the grounds of gender, due to an alleged failure of the respondent to deal with her application for flexible working. The second was for unfair dismissal arising out of her resignation.

On 17th March 2019, the claimant sent an email to her line manager making a ‘statutory request to reduce…working hours’.  The reason for this was family circumstances and being a lone parent.  She requested to work four days per week and indicated that she could not work weekends.  Article 112 of the Employment Rights (NI) Order 1996 outlines the requirements to be met for an application for flexible working to be made.  This is an application to change hours, which was outlined.  It must also propose the change, which it did. The third part was not met which must outline the change on the employer and how she felt the employer could deal with it. As a result, the Tribunal found that the application was not valid. The

Tribunal also noted that there was no onus on the employer to notify an employee that the application was incomplete. However, the LRA guidance does state that the employee should be informed of what has been omitted and that they should re-submit with the completed information.  The Tribunal did state that this was non-statutory guidance and is not to be treated as an authoritative statement of the law.  However, they also put on record that a large employer, like the respondent, should be mindful of applications of flexible working and should really be following the LRA guidance.

In terms of the application, there was a discussion, and it was found that the hours could be reduced but would have to include some weekend work. Indeed, all staff (with the exception of two on pre-existing contracts) did weekend work.   The issue of flexible working continued whilst the claimant was on sick leave from March 2019 until she resigned in October 2019. The claimant found work a week after her resignation and when questioned she stated that she had left her job with the respondent because she had found alternative employment.   However, the Tribunal found that the claimant had been looking for employment for some time due to the way in which her application for flexible working had been treated.

In examining the constructive dismissal claim, the Tribunal outlined that no specific term of the contract had been outlined as being breached. However, it proceeded on the implied term of trust and confidence. This was on the basis that the flexible working application had not been examined appropriately and instead treated, wrongly, as an informal application.  As a result, it was found that the respondent did not act reasonably (especially considering they had the benefit of an HR department) and that they acted in a manner likely to destroy trust and confidence.   Accordingly, the claimant succeeded in her claim for constructive dismissal.   As for the sex discrimination claim, it was found that there was no prima facie evidence outlined by the claimant and the claim had to be dismissed.

Practical Lessons

This case provides two very important takeaways.  The first is that respondents should be mindful of the distinction between an informal application for flexible working and a statutory application.  Whilst the application here did not meet the third criterion, the respondent should have examined the LRA guidance and outlined to the claimant that it did not meet the statutory requirements.  The second takeaway is that even if an individual states they have resigned for a new role, the Tribunal can and will look behind that remark to see why the claimant was looking for a new role and if it can be attributed to a breach of contract/implied term of the contract then it can still suffice for the purposes of constructive dismissal.

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