Handling flexible working requests can be a challenge for employers. In a recent Tribunal decision, an employer’s handling of a restructure which impacted upon an agreed flexible working pattern led to a successful constructive dismissal claim. Gregory, a postman, applied for and had been granted flexible working arrangements in 2012. This was to accommodate his parental responsibilities to his daughter whom he saw at weekends; he was also responsible for doing the school run on certain weekdays. Gregory asked and it was agreed that he could work Monday – Friday only and the variation to his contract was evidenced by way of a letter noting his new working pattern.
In 2015, the Royal Mail undertook a restructuring exercise at the depot where Gregory worked. The workforce was asked individually to complete a preferences questionnaire indicating any family friendly or care arrangements. Gregory was on holiday at the time and so did not return a questionnaire. His union representative picked preferences on his behalf and accordingly, Gregory was allocated a work pattern which involved working three Saturdays a month.
When Gregory returned from holiday and discovered what had happened, he objected and submitted a new flexible working request. Royal Mail rejected the request and his subsequent appeal. Royal Mail took the view that the previous arrangement agreed in 2012 was an informal one and as Gregory had not put forward any means of accommodating his new flexible working request under the restructure, it was neither practical nor acceptable to agree to his request.
Gregory shortly thereafter began a period of sickness absence and via his solicitor raised a formal grievance which was not concluded due to intervening circumstances. Subsequently, Royal Mail acknowledged that Gregory’s contract, as far working hours were concerned, had been altered contractually in 2012.
In May 2016, Gregory undertook a phased return to work, not working Saturdays. In June 2016, Royal Mail confirmed he was required to work three Saturdays a month in line with the restructure working patterns and so Gregory resigned. Gregory claimed constructive unfair dismissal and breach of contract (lack of notice pay). A previous claim for detriment under flexible working rules was withdrawn following settlement and a claim for sex discrimination dismissed.
Gregory succeeded with his constructive unfair dismissal and notice pay claims. The Tribunal concluded that the claimant had an agreed and contractually binding term in his contract of employment that he would only work Monday to Friday. In the Tribunal’s view, the employer, however inconvenient and costly, should have acknowledged and accommodated that working pattern in any restructure as it had for other employees at that time. The employer’s actions amounted to a unilateral and unwarranted variation of an express and important term of the contract and was a fundamental breach entitling the claimant to resign. Further, the Tribunal also considered the Royal Mail’s actions amounted to a breach of the implied term of trust and confidence.
Gregory was awarded circa £22,000 in compensation. For HR professionals, the transcript of the decision makes interesting reading particularly in relation to what amounts to conduct likely to destroy trust and confidence and when a variation to contract terms is binding. More generally, employers should note that whilst the Tribunal appeared to have some sympathy with the employer’s challenges in trying to achieve staff reductions and efficiencies through the restructure, it confirmed the employee’s contractual rights could not be ignored even if this was unsatisfactory, inconvenient and more costly for the employer.
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Gregory v Royal Mail Group Limited, ET 2402587/2016