Mr R Corrigan v The Parliamentary and Health Service Ombudsman: 2406698/2022
JUDGMENT
The respondent failed to comply with s80G(1)(aa) of the Employment Rights Act 1996 in relation to the claimant’s application for a variation of his contract under s80F Employment Rights Act 1996. JUDGMENT having been sent to the parties on 26 April 2024 and written reasons having been requested by the respondent in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:REASONS
Preliminary matters and issues for the Tribunal to decide[1]The circumstances which gave rise to this claim are that on 27 January 2022 the claimant made a flexible working request, in the following terms: “Contractual home-working as default, with no change to hours. This does not mean that I will never attend the office, but that I will attend as necessary rather than attending when it is not necessary”[2]The request was rejected by the respondent on 22 April 2022. It was rejected again on appeal on 20 May 2022. By an ET1 claim form presented to the Tribunal on 31 August 2022, the claimant makes the following complains, that are the issues for the Tribunal to decide:a. contrary to s80H (1)(a) of the Employment Rights Act 1996 (“ERA”), the respondent did not complete its decision and appeal process within the three-month period from the date of the application as set out in s80G(1B). The respondent accepts that this is the case and has apologised to the claimant, but does not accept that the claimant is entitled to injury to feelings for the delay; andb. contrary to s80H(1)(b) ERA, the respondent’s decision was based on incorrect facts. The claimant alleges that the “facts” cited as the respondent’s grounds for rejecting his application were not “facts” but “perception” and “thoughts” and therefore opinion and not valid grounds for rejecting the application. The respondent says that it did not take incorrect facts into account but validly refused the application on three grounds as permitted in s80G ERA, namely i. a detrimental impact on ability to meet customer demand; ii. a detrimental impact on quality; and iii. detrimental impact on performance.[3]The Tribunal heard evidence from the claimant and from Mr Hastings, the claimant’s line manager, Mr Gillies who dealt with the claimant’s appeal, Ms Chauhan from the respondent’s HR and Ms Mansfield, Chief of Staff of the respondent. We also received a witness statement from Mr Ogden, who determined the initial request, which we have considered, although we have not accorded it the same weight as if Mr Ogden had attended to speak to the statement and be cross-examined on it under oath.[4]The Tribunal also had the benefit of closing submissions from both parties, which were very helpful.Findings of Fact
[5]The facts in this case were largely not in dispute. The issues between the parties amounted more to a question of interpretation as to whether the matters relied on by the respondent in determining the claimant’s application and appeal were “facts” or not. The facts set out below are therefore set out in outline, with more detail provided only where the Tribunal was asked to determine a dispute of fact.[6]The claimant worked for the respondent between 1 April 2009 and 17 November 2022, in application support and development in the ICT Team in the respondent’s Manchester office. One of the claimant’s colleagues in the ICT team worked in the respondent’s London office, but most of his colleagues were based in Manchester. The evidence of Ms Chauhan was that in 2022-2023 there were 159 new starters and in 2023-2024, there were 49 new starters, including a small number in the IT team.[7]The claimant’s line manager was Peter Hastings, who was managed by Stuart Ogden, and he in turn was managed by Mr Gillies.[8]Mr Hastings’ evidence in his witness statement was that the claimant’s job mainly involved working on operational “business as usual” and IT projects that would help to create more efficient and effective online systems for the operations side of the business. This required him to speak to individuals across the business to ensure the projects provided solutions that would address users’ needs. We accept his evidence in this regard.[9]Since 2017, the claimant’s contractual working hours were compressed hours over 4 days, 8am to 6pm Monday to Thursday with Tuesday as a contractual home-working day. He attended the office 3 days per week.[10]The Respondent’s Flexible Working Policy dated 2019 stated at paragraph 3.2: “when making such an application [for flexible working] due regard must be paid to the impact of this on the business needs of PHSO; other PHSO employees and the individual themselves. PHSO places significant value on the informal learning and sharing which takes place within an office environment and the support, both work and personal, which teams provide to each other. In considering applications for contractual home based working the Assistant Director, Deciding Manager, will need to ensure that this is not eroded due to high levels of home-based working.”[11]The parties agree that during the Covid period nearly all staff worked from home. Following the Covid lockdowns in 2020, Maria Mansfield conducted an investigation into flexible ways of working for the respondent, including working from home . She published an initial report entitled “Future Working Practices” in April 2021 detailing findings from internal and external research sources, setting out how the organisation gathered information relating to flexible working. The investigation spoke to staff through a number of surveys, spoke with the respondent’s management, conducted focus groups and obtained information and views from trade unions and other public sector organisations and obtained information via desk research. In the final report, positive and negative aspects of home working were highlighted, for individuals and for the respondent’s organisation.[12]The respondent obtained more information on this issue from a pilot scheme on remote working. In this scheme, most employees worked 2 days per week in the office but two further groups worked different patterns. The groups were made up of volunteers and so were largely self-selecting. One group of 30 employees worked more than 2 days per week (mostly 3 days) and another group (including the claimant) worked 1 day per fortnight from the office. The group working one day per fortnight from the office reported satisfaction with the arrangement.[13]Following the results of their investigation into working patterns and attendance, the respondent indicated that its preference for staff was for a hybrid working arrangement allowing for working from home but with attendance in the office of two days per week. The claimant’s part of the pilot project got some advance notification of this and expressed their unhappiness with it, given that they were happy with only attending one day per fortnight.[14]On 27 January 2022 the Claimant made a flexible working request. The terms of his request were for: “contractual home-working as default, with no change to hours. This does not mean that I will never attend the office, but that I will attend as necessary rather than attending when it is not necessary”. The Tribunal notes that this was a request for a substantial contractual change from the previous position (prior to Covid and the remote working pilot scheme) which required 3 days in the office.[15]The claimant made that request before the completion of the process of evidence gathering as part of the respondent’s Future Working Practices project referred to above. He was asked to wait until the end of that process to allow the respondent to consider his application in the context of the respondent’s overall strategy for future flexible working, but he declined that request. This meant that the respondent had to make decisions on his application on the basis of the information available to it at that time.[16]The request was rejected by Mr Ogden on 22 April 2022 and on appeal, it was rejected by Mr Gillies on 20 May 2022. Three reasons were given, which were that the respondent considered that if the application were granted, there would be:a. A detrimental impact on ability to meet customer demand;b. A detrimental impact on quality; andc. Detrimental impact on performance.[17]The respondent accepts that the internal process to reach this decision took too long, as it was not completed within the 3-month time period set down in the relevant legislation. The Tribunal notes that the claimant received an apology for that at the appeal meeting and in the appeal outcome letter.[18]In his evidence and in his cross examination of the respondent’s witnesses, the claimant did not identify any specific ‘fact’ that was said to be an ‘incorrect fact’. He accepted that the respondent had taken into account facts including those that that he had presented to them, which were:a. an acceptance that it had been possible during Covid for all duties to be done from home;b. that it was possible for him to perform his role from home;c. that his work was highly rated;d. that he had worked hard and met his objectives; ande. for some tasks his productivity is higher working from home.[19]He did not argue that the respondent had considered or presented any of those matters incorrectly.[20]The claimant argues before this Tribunal that the respondent also took into account opinion and expectation, of the organisation and of managers, as to the long-term benefits to individuals, teams and the whole organisation of having some time working in the office. He says that these are not “facts” as required and therefore the decision was not validly made.[21]The respondent says that it accepts that opinions and expectations are not facts. However, the respondent’s evidence was that these opinions and expectations were based partly on the evidence that had been gathered at that time, including the Future Working Practices report. They are also provided for as matters to be considered in the respondent’s policy, as set out above at paragraph 10.[22]The claimant’s evidence was not that any of the opinions or expectations on which the respondent’s decision making was based were not genuine. The respondent’s evidence was that it was a matter of fact that these were the opinions and expectations of the decision maker, Mr Gillies and of the respondent more widely.[23]Mr Gillies’ evidence was that the respondent’s expectation was that over the long term, the claimant’s performance would be better with face-to-face working, and that full time working from home would have a detrimental impact over time on his performance, the quality of his work, and his ability to meet customer demand.[24]The claimant resigned from his job at the respondent before the respondent’s new flexible working arrangements were concluded. His new job does not have a contractual entitlement to home working, except that the claimant said that he has an agreement that he could do much of his work from home.[25]Subsequently, the respondent finished the Future Working Project, which decided that as from January 2023, the respondent’s staff were held to 40% working in the office over a 4-week period as set out in the Framework document, with an expectation of some time to be spent in the office each week. For the claimant that would have involved 40% of his 4-day week, which was an average of 1.6 days per week over a 4-week period. Core hours were removed, and employees were able to work flexibly between 7am and 7pm. Applicable Law[26]Flexible working applications at the time to which this claim relates were dealt with in Part VIIA Employment Rights Act 1996 and the Flexible Working Regulations 2014.[27]The provisions in ERA relevant to this matter are as follows.[28]Section 80F, Statutory right to request contract variation “(1) A qualifying employee may apply to his employer for a change in his terms and conditions of employment if— (a) the change relates to— . . . (iii) where, as between his home and a place of business of his employer, he is required to work” . . .[29]Section 80G Employer's duties in relation to application under section 80F “(1) An employer to whom an application under section80F is made—(a) shall deal with the application in a reasonable manner, (aa) shall notify the employee of the decision on the application within the decision period, and(b) shall only refuse the application because he considers that one or more of the following grounds applies— . . . (ii) detrimental effect on ability to meet customer demand, . . . (v) detrimental impact on quality, (vi) detrimental impact on performance. . . . (1A) If an employer allows an employee to appeal a decision to reject an application, the reference in subsection (1)(aa) to the decision on the application is a reference to— (a)the decision on the appeal, or (b) if more than one appeal is allowed, the decision on the final appeal. (1B) For the purposes of subsection (1)(aa) the decision period applicable to an employee's application under section 80F is— (a) the period of three months beginning with the date on which the application is made”[30]Section 80H Complaints to employment tribunals “(1) An employee who makes an application under section 80F may present a complaint to an employment tribunal—(a) that his employer has failed in relation to the application to comply with section80G(1),…(b) that a decision by his employer to reject the application was based on incorrect facts, or . . . (3A) If an employer allows an employee to appeal a decision to reject an application, a reference in other subsections of this section to the decision on the application is a reference to the decision on the appeal or, if more than one appeal is allowed, the decision on the final appeal.”[31]There was at the time a statutory ACAS Code of Practice (Handling in a Reasonable Manner Requests to Work Flexibly) from 2014 that has now been updated. The ACAS Code states that handling a request in a reasonable manner should include ‘carefully assessing the effect of the requested change for both the employer and the employee, such as the potential benefits or other impacts of accepting or rejecting it’.[32]In Singh v Pennine Care NHS Foundation Trust EAT 0027/16 the EAT held that it is not for an employment tribunal to judge the reasonableness of an employer’s refusal to provide flexible working in a S.80H(1)(b) claim. It simply needs to investigate the facts on which the decision was based. As in Commotion v Rutty [2006] IRLR 171, this involves testing whether the assertion made by the employer was factually correct but without conducting a “full enquiry…to see whether the employer has acted fairly, reasonably and sensibly” in putting forward the grounds it did for its decision (at paragraph 37). In order to do so, paragraph 38 of Commotion v Rutty states as follows: “In order for the Tribunal to establish whether or not the decision by the employer to reject the application was based on incorrect facts, the Tribunal must examine the evidence as to the circumstances surrounding the situation to which the application gave rise. In doing so, the Tribunal are entitled to enquire into what would have been the effect of granting the application. Could it have been coped with without disruption? What did other staff feel about it? Could they make up the time? and matters of that type. We do not propose to go exhaustively through the matters at which a Tribunal might wish to look, but if the Tribunal were to look at such matters in order to test whether the assertion made by the employer was factually correct, that would not be any misuse of their powers and they would not be committing an error of law.”[33]Awards of compensation for flexible working claims cannot attract an ACAS uplift under s207A Trade Union and Labour Relations (Consolidation) Act 1992 as this type of claim is not included in Schedule A2 to TULR(C)A 1992. Application of the law to the facts found[34]We accept the respondent’s submission that the Tribunal’s remit in flexible working applications is narrow and that the right in ERA is the right to make an application, not a right to flexible working itself. Section 80G(1)(b) ERA refers to whether the employer considers that one or more of the listed grounds applies. The question of whether they apply or not is not an issue for the Tribunal in this case. The decision must not be based on “incorrect facts” (s80H(1)(b)).[35]We also accept the respondent’s submission that it is for the claimant to establish the incorrect fact or facts complained of in this case. Subsection (1)(a) - delay[36]It is agreed by the parties that the appeal decision is dated more than 3 months after the date of the date of the flexible working request. The question for the Tribunal was whether the claimant is entitled to an award for injury to feelings based on the delay.[37]We find that the claimant has given the Tribunal no evidence of injury to his feelings. It was raised with the Tribunal by the respondent at the start of the hearing that the claimant had provided no evidence of this. The claimant told the Tribunal that the circumstances in which he made the request, and the consequences of the refusal, were a private matter. He declined to provide further evidence or information. The basis on which the Tribunal needed this information was explained to the claimant at the start of the hearing in connection with a discussion about the terms of his new employment.[38]We find that the delay had no impact on his working arrangement which at the time was more flexible than before, given his participation in the Future Working project, which continued to May 2022, and his flexible arrangements continued to the end of his notice period. The respondent also apologised for the delay, which itself was only approximately 3 weeks. We have no further evidence on which to base our decision. In all the circumstances we therefore find that it is not just and equitable to award compensation to the claimant for injury to feelings. Subsection 1(b) – incorrect facts[39]Part of the claimant’s submissions referred to what does or does not amount to a “fact”. The Tribunal was provided with the definition of a ‘fact’ from the Cambridge English Dictionary which is: “something that is known to have happened or to exist, especially something for which proof exists, or about which there is information”[40]The claimant also provided the Tribunal with a dictionary definition of “incorrect”. He told the Tribunal that the respondent’s belief needed to be relevant and appropriate, and that Mr Gillies was working on assumptions. Such assumptions are not facts and cannot be the basis for the rejection of a flexible working request.[41]The claimant told the Tribunal that the facts need to support the respondent’s reasons and they do not. He worked from home and his work efficiency and standards and customer care were excellent and his productivity was improved. His evidence was that this was due to a lack of disruptions. He told the Tribunal that when he went into the office there was a lot of “chit-chat” that disrupted him. His evidence was that it was also pointless to be in the office as there were no other people in at the time in early 2022.[42]He said that colleagues who requested IT support via “walk ups” or face to face requests should not do so, as they have a ticketing system for IT issues, so he did not need to be in the office. He reminded the Tribunal that a team member worked in London with no detrimental effect on the team, according to Mr Hastings. He also submitted that the respondent’s policy does not take individual circumstances into account in that Mr Gillies gave evidence that there were no circumstances where 100% homeworking would be granted.[43]The respondent says that the claimant’s contention that the respondent provided no evidence or facts that the grounds cited would occur if the claimant's request was granted is not enough to establish the incorrect fact or facts, even if the Tribunal were to agree with that argument. As it was, the claimant has been unable to identify any specific ‘incorrect fact’ formed the basis of any of the respondent’s decisions. We agree with the respondent’s submission on this issue.[44]The respondent’s submission was that what this case amounts to is that the claimant disagrees with the respondent’s opinions and expectations as to the risks of long-term home working given that the claimant was requesting a permanent contractual change from 3 days in the office to permanent home working, save where ‘necessary’. That disagreement is not enough to base a claim to the Tribunal on.[45]We agree with the respondent’s submissions. We accept that the respondent’s decision was based on an assessment of what they believed would happen if flexible working was given to the claimant as he requested. This was against a background of trying to establish a coherent flexible working policy, which work had not been completed at the time the request was considered. The detrimental effects that the respondent wished to avoid were partly intangible and related to the respondent’s workforce cohesion and collegiality and the impact on training and retaining new starters. As this was partly an assessment of future intangible matters, there was no “fact” for which evidence would be available or for which proof could exist.[46]The claimant was focussed almost exclusively on the individual application of the policy to him. However, this is not what the policy itself provides for. The respondent’s flexible working policy places the request squarely in the context of the organisation and its needs, as per paragraph 3.2 cited above in paragraph 10. It is not just the individual’s needs that are to be considered. It is also the wider issues that concern the respondent’s management, which are collaboration, engagement, the fostering of a positive and collegiate culture and the support of new starters in the organisation.[47]We find that the fact that the respondent took into account its opinion or expectation is not demonstrating the application of incorrect facts. The respondent applied a mixture of the existing facts, as collated through the initial findings of the Future Working project, and its opinion, in reaching a decision. This does not contravene the provisions of the ERA, including s80G and s80H.[48]The Tribunal was asked to consider the authority Commotion v Rutty. We find that the respondent in this case did not take an “off the cuff” decision but took a decision supported by extensive research. The respondent took into account that it was possible for all of the respondent’s functions to be performed working full time from home, and possible for the claimant to perform his role specifically working full time from home and that the claimant’s own work over the past two years of working from home during the pandemic has been highly rated and that he had worked hard and met all of his objectives and that for some tasks, productivity was higher working from home. The respondent also considered that there were benefits that hybrid working can bring for colleagues, especially an improvement in work life balance with the ability to spend more time with family. However, we accept the respondent’s submission that those are not all of the relevant facts.[49]The respondent’s assessments of the impact of the claimant’s proposed working pattern on him, his team and the organisation is an inevitable part of decision making and it is a fact that these were genuine assessments based on the evidence available to the respondent at the time. Although those in the pilot programme showed no significant differences between those working mostly from home and those in the office, surveys showed that the management (as opposed to individual employees) were much less confident in their ability to manage those working from home, and concerns were raised about isolation and lack of engagement. We find that higher level cultural and workforce planning issues were not the concern of the claimant but were legitimately the concern of the respondent’s management.[50]There is no requirement under the legislation for the respondent, as part of the consideration of the flexible working request, to provide evidence of the detrimental impact that it is expected that the claimant’s full time working from home would have and we accept that in this case, it would not be proportionate or feasible for such evidence to be obtained.[51]Finally, the claimant submitted that the respondent has carried out a blanket application of an inflexible policy. We do not agree. The final outcome of Flexible Working Project was a policy of 2 days or 40% per week over 4 weeks and no core hours, was very flexible, especially when compared with the claimant’s contractual position of 3 days per week in the office with core hours and only one day working from home. The claimant also had the opportunity to discuss this further with Mr Ogden after the appeal outcome but we find that he did not and sought alternative employment instead.[52]The decision to reject the application on these groundsa. detrimental impact on ability to meet customer demand;b. A detrimental impact on quality;c. Detrimental impact on performance. was not based on incorrect facts. We therefore do not make a declaration and award of compensation in favour of the claimant.