Another win on flexible working at the employment tribunal

At the end of last week, a mother won £22,000 at the Nottingham employment tribunal after her employers increased the part-time hours she had to help her care for her daughter who has Down’s syndrome, forcing her to leave. The tribunal ruled that the action represented constructive unfair dismissal.

After her maternity leave in 2015/16 Amy Pullin was working four days a week as a Project Lead at warehouse management company Neovia Logistics Services in Leicester when her employer increased her hours back to full time. She then put in subsequent flexible working request to reduce her hours. However, her employer subsequently decided to increase these, given her just four weeks’ notice and no alternative. The tribunal ruled that the employer had presented “no objective evidence of potential difficulties in meeting customer demands, no evidence as to concerns regarding the wellbeing or workloads of other employees in Mrs Pullin’s team, no evidence that [her] colleagues could not assist in carrying the increased workload nor any evidence as to whether there was assistance available from outside [her] team”.

The case is one of a number of flexible working cases which have been successful in the last few months, although none has been successful solely due to flexible working legislation, which is very weak, the reasons for turning down a request being so vague that any employer not minded to grant a request could cite any one of them. In this case, the claim was for constructive unfair dismissal. Earlier in the autumn a British Airways cabin crew member whose flexible working request was turned down won her case for indirect sex discrimination; and an estate agent was awarded more than £180,000 after her flexible working request was turned down on the grounds of sex discrimination; and a woman who was dismissed on maternity leave after she refused to take a more junior role with a £20,000 pay cut won a case for pregnancy/maternity discrimination.

It is definitely good news that women are taking and winning such cases. It can take courage and perseverance to pursue a claim at the employment tribunal. Often employers make things difficult for employees who take such action, getting them to sign gagging clauses, going through their emails to seek evidence against them, threatening them with letters from expensive lawyers. They worry about the possible cost of taking action. They worry about the long-term implications for their career, even if they win. I know, I’ve seen it. Those cases that do make it to tribunal can take a while, due to the backlog, but many are put off getting this far so these recent cases are useful in highlighting what the legal position is.

The Government is currently consulting on proposed changes to flexible working legislation, including a plan to make the right to request flexible working a day one right rather than people having to be 26 weeks in the job before they can apply. Many of the changes are small tweaks to the legislation and will not significantly protect employees from employers who are reluctant to offer them the flexibility they need. What could change things, however, is the current skills shortage. If employees have other options open to them the likelihood of them jumping ship will increase. Recruitment – and any allied training – costs so it is in employers’ interests to retain those employees they have. The dinosaurs may still resist, but we all know what happened to the dinosaurs.

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