The Answer
The Employment Tribunal in Johnson v Bronzeshield Lifting Ltd, upheld a constructive dismissal claim where a long service employee working as an administrator resigned after her employer refused her flexible working request, where the employee requested not to work on Friday and to have her rest break at the end of her working day so that she could leave early to support her elderly parents, for which the employee had caring responsibilities and that the flexible arrangements would help support her menopausal symptoms.
Although, the Employment Tribunal did agree that the employer had justifiable business reasons to refuse the employee’s flexible working request as Friday was the employer’s busiest day and that the law required to give an adult employee a break after working six hours thus there was no case for disability discrimination by their refusal however despite this finding, the Employment Tribunal found in the employee’s favour over her constructive dismissal claim as the Employment Tribunal felt that the employer had failed to fully consider the impact of employee’s menopause on her life and emphasised that “flexible working applications based upon health factors are generally matters of significant objective importance……….the hours an employee works have a major impact on the employee’s life. That was …… the case here” and “…. prior to rejecting the request to work flexibly, there was an absence of effort to try and understand how menopause was affecting her and to ascertain its relevance to the application”.
The Risk/Threat
There is no automatic right to work flexibly thus any remedy for breach of flexible working request procedure alone is limited to the Employment Tribunal ordering an employer to reconsider the request or award compensation to be paid by the employer, up to a maximum of 8 weeks’ pay (capped at the statutory maximum, £700 per week from 6 April 2024), but substantial damages claim could arise if refusal relates to a request over employee’s caring responsibilities and or the employee’s health issues that could fall within discrimination law or otherwise constructive dismissal, where the employee resigns and meets the criteria for a constructive dismissal claim.
What You Need To Know
Any flexible working request must be considered in a “reasonable manner “and there is no legal duty on an employee to explain the effect the change would have on their employer, nor is the employee required to explain on how that effect might be dealt with or to give reasons as to why the employee is wanting to make the change, see ACAS Code on flexible working, but it is prudent for the employer to ask the reasons for the change, thus whether a request is deserving or not will not be the ground upon which an employer can reject a request and the employer must consider the 8 or so business related objections that the Government suggests can be relied upon by the employer.
ACAS have introduced a statutory code of practice on requests for flexible working and although a failure to follow the Code does not, in itself, make a person or organisation liable to legal proceedings. However, Employment Tribunals will take the Code into account when considering relevant cases.
