Precedent 5: Breach of flexible working regulations and part time work refusal
The right to request flexible working applies to all employees who have accrued 26 weeks’ continuous employment.
This precedent sets out the law after this change.
It covers these issues:
- Refusal of request to work part-time.
- Breach of the Flexible Working Request procedure.
Box 8.2 of tribunal claim form
- I started work for the respondent firm of solicitors in 20012 as a solicitor in its probate department. My sister lived nearby and used to take my two young children (then aged four and six) to and from school and look after them in the school holidays.
- In 2017, my sister moved out of London and was no longer able to help me out with the children. I made various temporary arrangements for about a year, but none of them were satisfactory or reliable. My husband and I decided we would have to split the childcare between us.
- On 15 September 2018, I wrote to my head of department, Jonathan Armstrong, under the Flexible Working Regulations 2014, asking to work part-time on the basis of three or four days per week. Mr Armstrong delayed on several occasions to have a meeting with me. He finally held a meeting with me to discuss my request on 29 December 2018, over 3 months after I made my request. At this meeting he said he felt the quality of my work would suffer and that it would be too hard to find someone who would want to work only one or two days. He said he felt a job-share was not cost-effective. He also rejected the possibility of any other part-time arrangement on the same grounds. He promised he would confirm all this in a letter, but he never did.
- I appealed to the managing partner by letter dated 30 December 2018. The managing partner wrote to me on 9 January 2019 rejecting my appeal. He didn’t even try to talk to me about it. His letter just said he did not think part-time working was suitable for solicitors.
- My husband was unable to look after my children full-time and as I could not make any other satisfactory arrangements, I had no choice but to resign. I sent in my resignation letter on 19 January 2019.
- I believe it is perfectly feasible for my job to be done on a part-time or job-share basis, and I was willing to make it three or four days according to which was easiest. Also, I had said I was willing to be flexible and take urgent calls and check my e-mails when I was out of the office.
- I believe that the refusal to allow me to work three or four days/week or in any other part-time arrangement was indirect sex discrimination contrary to the Equality Act 2010.
- Further, I believe the refusal of my request to work part-time was a fundamental breach of the implied term of trust and confidence. I therefore believe I was constructively dismissed and I claim unfair dismissal contrary to s98(4) of the Employment Rights Act 1996.
- I also believe my constructive dismissal was indirect sex discrimination contrary the Equality Act 2010.
- Further, my employer failed to comply with the requirements under section 80G of the Employment Rights Act 1996 in that: – Mr Armstrong failed to notify me of the decision on my application within the decision period., – Mr Armstrong failed to deal with my application in a reasonable manner – the letter rejecting my appeal did not specify one of the permitted grounds for refusal set out in the Employment Rights Act 1996, nor did it contain sufficient explanation of its grounds. I request compensation under the Flexible Working Regulations 2014 and the Employment Rights Act 1996 for this.
- I also claim notice pay.
Actions complained of
Always identify the actions complained of first. Here, these are:
- Refusal of the claimant’s request to work three/four days/week or any other part-time arrangement.
- Rejection of her appeal.
- Feeling she had to resign as a result.
- Failure to comply with the requirements set out under section 80G of the Employment Rights Act 1996
It is very important not to miss tribunal time-limits. These can be complicated.
Refusal of a request to work part-time or insistence on full-time working may be indirect sex discrimination under section 19 of the Equality Act 2010. Indirect sex discrimination is where an employer unjustifiably applies a general rule (eg no part-time working) which puts women (more than men) at a particular disadvantage. This is because women still tend to have the greater share of childcare obligations.
If the employer would have allowed a male employee in a similar situation to work part-time, the claimant could also claim direct sex discrimination under section 13 of the Equality Act 2010. This was not the case here.
If the claimant resigns as a result of the refusal, this could be constructive dismissal. If so, she can claim unfair dismissal under section 98(4) of the Employment Rights Act 1996, provided she is an employee with at least two years’ service (if she started work for that employer on or after 6 April 2012, or one year’s service if she started work before 6 April 2012). Constructive dismissal occurs where an employee resigns because the employer breaks her contract in a very serious way. This can include breaking the implied term of trust and confidence. It depends on the facts whether the employer’s conduct in refusing the request, possibly taken with the employer’s treatment of the claimant generally, is serious enough to amount to a fundamental breach of the implied term of trust and confidence.
The constructive dismissal can also be indirect sex discrimination under section 19 of the Equality Act 2010.
The Flexible Working Regulations 2014 give the claimant an independent right to have her request to work part-time formally considered. There is no right under those Regulations to have the request agreed. If the employer correctly follows the requirements set out in section 80G the Employment Rights Act 1996 but refuses the request, the claimant’s only rights are any which exist under the Equality Act 2010, Employment Rights Act 1996 or Maternity and Parental Leave etc Regulations 1999. In the case here, the claimant can claim separate compensation under the Regulations because the procedure itself was not followed in several respects. The relevant rules are contained in:
- Flexible Working Regulations 2014
- section 80F – 80I of the Employment Rights Act 1996.
If an employee resigns without notice due to fundamental breach of her contract, she can claim notice pay.
You might find it helpful to see a table of legal rights often applicable in areas relevant to working families.
Comments on the claim drafted above
Paragraphs 1 – 6 contain the facts. Paragraphs 7 – 11 contain the law.
Paragraphs 5, 8 and 9 can be omitted if the claimant did not resign.
Paragraph 6 mentions that the claimant did offer to be very flexible, checking e-mails from home, and working three or four days/week etc. It is worth putting it into the tribunal Claim if the claimant did make this kind of offer, as it makes it harder for the employer to justify refusing the claimant’s request to work part-time.
Paragraph 8: The claim mentions ‘s98(4)’ just to make it clear it is talking about ordinary unfair dismissal here rather than any kind of automatic unfair dismissal.
Paragraph 10 – strictly-speaking, the Employment Rights Act 1996 does not say the ground for the decision to refuse the appeal must be one of those specified in section 80G(1)(b) of the Employment Rights Act 1996.
Except as explained, the above precedent does not cite the precise sections applicable to most of the claims. This is because the law is particularly difficult in this area and if you leave something out or get a section number wrong, it may cause problems later.
Formal request made under flexible working regulations, but the regulations correctly followed by the employer: Very often the employer correctly follows the requirements of section 80G of the Employment Rights Act 1996, but still refuses the claimant’s request. If so, the tribunal Claim will only be in respect of the refusal and will be under the Equality Act 2010. Paragraph 10 in the above precedent would be omitted.
No formal request made under the flexible working regulations; informal request made by claimant is refused: It is essential to remember that the Flexible Working Regulations only provide a procedural right to have the claimant’s request to work flexibly formally considered by the employer. They do not provide any right to be allowed to work flexibly. The law which is relevant to the claimant’s actual right to work flexibly is usually under the Equality Act 2010. The claimant can bring a claim for indirect sex discrimination under the Equality Act 2010, even if she never used the procedure under the Flexible Working Regulations and only asked her manager informally to work part-time. For such a claim, paragraph 10 in the above precedent would be omitted and paragraphs 3 – 4 of the statement would be adjusted to describe any informal request made. Working Families does advise that eligible employees do use the formal procedure to make requests under the Flexible Working Regulations wherever possible.
This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. Please call our helpline for more details