The People Bulletin

Mrs Bryan brought a case against Corporate Advertising Ltd. because she believed that they hadn’t dealt with her request for flexible-working correctly. The employment tribunal penalised the employer almost £3,000 for failing to follow the statutory right to request flexible working procedure to the letter, even though the managing director may have been distracted because he was dealing with possible redundancies at the same time. 

Mrs Bryan worked as a service desk operator for Corporate Advertising Ltd. Mrs Bryan was on maternity leave from September 2009 and was due to return to work in June 2010. In March 2010 Mrs Bryan discussed her request to return to work part time with Mr.Gillson, the managing director. No record of the conversation was kept and a disagreement followed as to the outcome of the meeting. The tribunal concluded that the request was probably agreed in theory but nothing had been formally confirmed.

Mrs Bryan made a formal request in writing on 19 May 2010 under the statutory right to request flexible working procedure. She asked to be allowed to return to work on a three-day week, working Monday to Wednesday. She requested a meeting to discuss the matter within 28 days. 

Mrs Bryan’s request was rejected on the grounds that a job-share would not provide one consistent contact for the company’s biggest customer and mistakes could result from this. This was confirmed in writing, and it was suggested that she might like to try an alternative part-time role within the company. Mrs Bryan appealed the decision and requested an appeal meeting within 14 days.

The appeal took place five days later than the regulations lay out, the outcome of this appeal was not notified to the employee within the 14 day limit. During this time the company also announced that redundancies would be required and invited volunteers for redundancy. 

When Mrs Bryan was not informed of the outcome of her appeal she lodged a grievance and eventually resigned and brought a number of tribunal claims against the company including constructive dismissal and indirect sex discrimination. Both of these claims were rejected. However, the tribunal upheld Mrs Bryan's claim for breach of the statutory right to request flexible working procedure. The company had failed to meet its mandatory obligations under the Flexible Working (Procedural Requirements) Regulations 2002 (SI 2002/3207) to:

• hold the appeal meeting within 14 days of receipt of the notification that the employee wished to appeal against a decision to refuse her request for flexible working; and
• give the employee notice of its decision on the appeal within 14 days of the appeal meeting. 

As a result Mrs Bryan was awarded £2,880.

David Cubitt an employment partner at Osborne Clarke said:

 "The outcome in Bryan v Corporate Advertising Ltd is a clear reminder to employers to follow the correct procedures when dealing with employee requests. At busy times, and especially for smaller companies, following detailed procedures can seem like an unwanted burden, but the penalties for failing to comply can be even more damaging. In this case the cost to the employer was the £2,800 awarded to the ex-employee, plus the time and costs involved in the tribunal process. 
 
Flexible working requests are particularly difficult as they are not black and white and can involve intense negotiation as they face the employer with fundamental resourcing issues well as potentially being emotional for the employee.
 
Even so, the procedure is important and the company's downfall in this case was that it failed to meet the deadlines required by the rules. Somewhat ironically here, Mrs Bryan failed in her legal challenges based on the actual rejection of her flexible working request.  
 
Our advice to employers faced with a flexible working request is to check the rules and build a clear timing plan based on them to ensure that they meet the required deadlines.  A few days unwittingly added here or there could otherwise prove costly." 

www.osborneclarke.com

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