Flexible working rescinded: ask the expert

In December 2010 my wife and I had our first baby and due to that we both needed for me to work a regular shift pattern that would enable me to have my son on a couple of days during the week while my wife works. While I work [as a bus driver], my wife looks after our son. I was offered 39 hours a week but with the hours compressed into four days rather than five. This facility is something that the company provides throughout the whole of the UK for those who have family responsibilities. It is meant to be reviewed on a basis of around six months. My manager has since changed and the new manager has given me two months to find other childcare arrangements. In the presence of a union official, the manager made it clear that the only option the company was now giving me was to use childcare, which means that I would have to work an extra day or two to cover the cost of childcare. Other colleagues are allowed to continue working flexibly because their circumstances are “different”. I feel that I am being treated like this as I have reported a lot of problems with bus safety recently. I have submitted a formal application for flexible working for the hours that I am currently doing under the facility provided which is something that I really need as in September my wife and I are expecting our second child. I don’t see them accepting my request for flexible working, even though I meet every criteria and that it won’t affect the current running of the business in any way because what I am asking for is already in effect. Once I get the reply I am anticipating, which is the refusal, I will appeal. What grounds do you think I have for taking this further to enable me to have a work life and be a parent?

Based on the facts you do appear to have been treated unfairly and there may be possible grounds for employment tribunal claims. It doesn’t make sense that after nearly two years of granting you this compressed hours facility it has now been unilaterally revoked without explanation. It also doesn’t make sense that only you seem to have been singled out. There are some gaps in the information and I definitely have questions about the summary so I would recommend you obtain full advice on your situation.

You mention that you have trade union support – a trade union official has been present at some of your meetings with your employer- so I assume that person is also advising you on your options, particularly if, as expected, your flexible working request is refused.

On the basis that you are receiving advice, I haven’t answered your claim in detail. Instead I thought it would be useful for WorkingMums readers to see a list of the possible employment claims which come to mind based on the facts as stated – though to be certain there definitely needs to be more exploration of the circumstances of your situation.

1. Part V Employment Rights Act 1996- Protection From Suffering A Detriment In Employment

You state that over the past couple of months you have been notifying your employer of health and safety defects you have discovered on buses which require repair. You feel that the refusal of the compressed hours facility is a punishment for raising these health and safety issues- if this is the case then you are being subject to a detriment because you have highlighted health and safety issues. Under the above statute, an employee is protected from suffering a detriment on the grounds of having brought a health and safety matter to the attention of the employer. An employment tribunal can pay compensation if this is the case. Ultimately, if the detriment is dismissal by the employer, the dismissal can be automatically unfair.

2. Employment Rights Act 1996/ Public Interest Disclosure Act 1998 – Whistleblowing/Protected Disclosures

If an employee does raise an issue of health and safety with the employer, this may amount to a protected disclosure under the whistleblowing provisions of the Employment Rights Act 1996. The Public Interest Disclosure Act 1998 protects workers who ‘blow the whistle’ about wrongdoing. Health and safety disclosures is one type of qualifying disclosure. Most employees are included in the definition of worker in this Act. Again, workers are protected from being subjected to a detriment by their employer. In order to be protected under the Act, the disclosure needs to be a “Qualifying and Protected Disclosure”. This is a complex requirement and one of the key elements is that the disclosure is made in “good faith” – not maliciously /to cause trouble.

3. Equality Act 2010 – Direct/Indirect Sex Discrimination

It is not clear based on the facts whether this compressed hours facility is granted to female and male drivers and in what proportions. I think it is unlikely but there may be scope for a direct sex discrimination claim if it can be argued that the reason for the refusal is based on being a man or your marital status, if every female employee who applies for this facility is successful and women never have their facility revoked. Similarly, I think it is unlikely but based on the actual facts there may be scope for an indirect sex discrimination claim. Indirect discrimination occurs when a provision, criterion or practice is applied by an employer- in this case the revocation of the facility- and which may seem neutral on the face of it but in the case of indirect sex discrimination:

– Which puts one sex at a particular disadvantage to the other, and

– Which puts the particular employee at that disadvantage; and

– Which the employer cannot show is justified for an objectively good reason.

4. Breach of Flexible Working Regulations (regulation 7, Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002) -Failure To Follow Statutory Flexible Working Procedure Or Basing Rejection On Incorrect Facts

An employee may make a complaint to an employment tribunal on very limited grounds. These are:

– The employer has failed to deal with the request in accordance with the procedure by failing to hold a meeting, notify a decision, or offer a right of appeal;

– The employer has refused the request for a reason other than because it considers one of the prescribed reasons applies; and

– The decision to reject the application was based on incorrect facts.

5. Repudiatory Breach of Contract/Constructive Dismissal

It’s possible based on the facts that the unreasonable revocation of the facility to punish you for your health and safety disclosures is a fundamental breach of contract by your employer entitling you to resign and claim constructive unfair dismissal. Please, obtain proper advice before taking any action.

I hope the above is useful and if you need any further assistance, please contact me.





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