During a period of maternity leave the claimant informally asked her Manager if she would be able to return on flexible working of 3 days per week. He indicated that there would be no problem in complying with the request. When the application was formally made to the Area Manager it was rejected and it was explained that the company wanted to avoid ‘setting a precedent’. However, it was agreed that a reduction would be allowed, but only for a 3 month period.

A claim was made under Article 112H of the Employment Rights (NI) Order 1996 and the tribunal held that ‘the avoidance of a precedent is not one of the permitted grounds’ that employers can rely on in refusing an application for part-time working, notwithstanding the fact that there were other lawful reasons for the refusal. It was also held that the claimant was not afforded an appeal ‘in any meaningful way’, as the hearing was conducted by two subordinates of the Area Manager, one of whom was in a personal relationship with him.

There was no actual judgment made on any bias but the tribunal cited concerns that the claimant may not have ‘experience[d] a fresh approach’ from the appeal panel. It was held that that six weeks’ pay was the appropriate measure of compensation. All of the other claims advanced were dismissed.

PRACTICAL LESSONS

Article 112G of the 1996 Order, which outlines the permissible grounds of refusal for flexible working, does not permit a refusal based on concerns about creating a precedent. As such it was considered ‘a prohibited ground for refusing an application’. However, it must be stressed that this is a discretionary remedy and is capped at 8 weeks' pay. In this case, the fact that there was another flaw in the process i.e. a failure to offer a meaningful appeal, convinced the tribunal that it was appropriate to make an award. Had there only been one failure on behalf of the company the outcome may have been different.