Veitch Penny LLP - Exeter | Crediton, Devon

Case

Commotion Limited v Rutty
Employment Appeal Tribunal (13th October 2005)

Issues

(1) Unfair Dismissal
(2) Dispute Resolution Regulations
(3) Flexible Working

Facts

Ms Rutty was employed as a Warehouse Assistant. She asked her employers to allow her to work a three day week to enable her to look after her grandchild. The employer refused on the basis that to allow her to work part-time would have a detrimental impact on performance in the warehouse. Ms Rutty then made a formal application for flexible working asking her employer to change the terms of employment to allow her to work a three day week. Her application was also refused and two weeks later she resigned.

At first instance, the Tribunal upheld her complaints of a constructive unfair dismissal and breach of the flexible working provisions. It made a finding that her employers had not complied with the relevant legislation. They had failed to show that part-time work was not feasible and could not be organised in a way so that there was no diminution in service to customers. The Tribunal also went on to hold that, having made a request for flexible working, it was not then necessary for the Claimant to have raised a further grievance in order to comply with the statutory grievance procedure under the Dispute Resolution Regulations.

The employers appealed to the Employment Appeal Tribunal (EAT).

Decision

The EAT held that an employee was entitled to present a complaint on the basis that the employer's decision to reject the application was based on incorrect facts by virtue of Section 80H (1) (b) of the Employment Rights Act 1996. Accordingly, it followed that the Tribunal was entitled to investigate the evidence to see whether the decision was based on incorrect facts. While the Tribunal was not entitled to look and see whether it regarded the employer had acted fairly or reasonably when he put forward his reason for rejecting the request, it was entitled to look at the ground the employer asserted as the reason for not granting the application to see whether it was factually correct. That inevitably would involve examining the evidence as to the circumstances surrounding the application such as the effect of its grant, any potential for disruption and the attitude of other staff.

In addition, the EAT also confirmed that there was no reason why the Claimant, having complied with the procedure to make a flexible working application, had then to go on to present a further grievance letter to comply with the Dispute Resolution Regulation. It was clear that the Claimant's case was the employer's refusal to properly consider her request and which created an atmosphere that was so bad she felt she had no alternative but to leave. Accordingly, it was open to the Tribunal to find that the Claimant's flexible working application was also the presentation of a grievance under the regulation.

Comments

This is the first reported decision on the right to request flexible working. The regulations require an employer to consider an application for flexible working and specifies that the employer "shall only refuse the application because he considers that one or more" of eight specified grounds apply. The Tribunal is not empowered to adjudicate on the reasonableness of the grounds but is entitled to look into the evidence to see whether the decision was based on incorrect facts. In this case, the Tribunal was entitled to find that the evidence did not support the employer's assertion that allowing the Claimant to work a three day week would have had a detrimental effect on performance.

Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it