Mr H Morsing v Howden Joinery Group plc: 3304544/2024
JUDGMENT
The claimant’s complaint about flexible working is not well founded and is dismissed.REASONS
[1]In a claim form presented on the 29 April 2024, the claimant made a complaint pursuant to section 80H Employment Rights Act 1996. The respondent denies the claimant’s complaints.[2]The claimant’s employment with the respondent commenced on 21 November 2022. The claimant was employed as Midrange Systems Administrator.[3]The respondent is a manufacturer and supplier of kitchens and joinery products to the building trade.[4]The claimant received a letter offering him employment that stated that “this role will be located at our Northampton Office.” The claimant’s contract of employment stated that his location for work was Northampton and further provided that “You may be required to work in another location, for current rules relating to mobility and transfer you should refer to the Employee Handbook.”[5]When the claimant’s employment began, in response to the COVID-19 pandemic, his team were all generally working two days a week in the office (J) Page 1 of 7 and three days a week at home on a temporary and informal basis. These arrangements were discretionary and had only been put in place as a response to the pandemic. These discretionary arrangements were to be subject to change depending on how the COVID-19 pandemic progressed.[6]On 18 December 2023 the claimant was informed that he would have to work in the office three days a week. The rationale for this decision is explained in documents produced by the respondent at pages 64-71 of the trial bundle.[7]Jack Norris, an Infrastructure Manager and the claimant’s line manager, supported the decision to require employees to work from the office 3 days a week. He says in his statement that: “I was supportive of the decision to require employees to return at least 3 days per week (which still offered a degree of hybrid working) because the benefits of working together in the office cannot be understated. When we work together in the office, we collaborate with colleagues more, it is quicker to communicate with relevant specialists to solve problems more efficiently and the general atmosphere and team morale is enhanced. I believe that quality and performance are improved by greater in office working, and this also impacts on the quality of our service to our internal and external customers.”[8]The claimant submitted a flexible working request on 2 January 2024 requesting “status quo with regards to my working arrangement, meaning continuing two days per week in the office.”[9]Jack Norris explained his approach towards the application in the following way: “I was comfortable that there was flexibility for managers to approve flexible working requests if the circumstances warranted it and if it would not have a detrimental impact on the business and/or achieving the intended goals which informed the mandate of everyone working from the office at least three days per week. Ultimately, I was conscious that the business wanted everyone in for three days per week for the reasons specified, but individual circumstances would be taken into account in dealing with any requests.”[10]The claimant had a flexible working request meeting with Jack Norris on 23 January 2024.[11]In the meeting the claimant gave his reasons for his request for flexible working, these were(a) he did not want to be tired driving to and from home for an extra day per week,(b) he wanted to avoid incurring the additional costs associated with commuting into the office an extra day per week, and(c) the team he worked closest with was not based in the same office location (J) Page 2 of 7 as him so there was no need to attend the office for an additional day per week. During the meeting the claimant was asked by Jack Norris whether working in an alternative office at Croxley would be more beneficial to him and he said that it would not.[12]During the meeting the claimant alleges that Julie Gibbons (HR), who was acting as notetaker during the meeting, stated “this is coming from the top”, referring to the requirement for the claimant to work three days a week from the office.[13]Following the meeting Jack Norris decided on the claimant’s application, rejecting the application and setting out his reasons in a letter to the claimant dated 2 February 2024.[14]The claimant submitted an appeal against the decision and his appeal meeting took place with Martin Gillon, Head of Technical Operations, on 28 February 2024.[15]Martin Gillon’s position was that he was fully supportive of the requirement to return to the office for three days.[16]The claimant set out his grounds of appeal challenging the three reasons cited for rejecting his flexible working request in the outcome letter. The claimant argued that they were not valid as there was no evidence to support the reasons given, pointing out that he had not been subject to any performance concerns and contending that the outcome letter was "generic". It was confirmed that there have been no complaints relating to the claimant when he was working from home.[17]On 19 March 2024 the claimant was informed in a letter from Martin Gillon that his appeal was refused.[18]Section 80F of Employment Rights Act 1996 (ERA) provides that an employee can apply to his employer to change his terms and conditions of employment, including where, as between his home and a place of business of his employer, he is required to work.[19]The flexible working provisions do not give employees any substantive rights to have their flexible working requests granted, however meritorious. They merely have the right to have the matter considered in accordance with the requirements set down in section 80F- 80I ERA and for the employer’s refusal to be for a valid business reason. The decision must not be based on incorrect facts.[20]Section 80G(1) provides that employers have a duty to deal with applications in a ‘reasonable manner’.[21]The employer must have a genuine commitment to considering the application; the employer must not have an entrenched position; the Tribunal must not (J) Page 3 of 7 substitute its views for that of the employer in respect of the outcome of the application. Section 80G(1) is concerned with dealing with the application in a reasonable manner, rather than making a reasonable decision. The ACAS Code states that requests must be handled — as opposed to decided — in a reasonable manner. The employer must follow a reasonable procedure; the employers must act in good faith, in that they must genuinely consider that one or more of section 80G(1) (b) grounds for refusing the request applies. There is an obligation on employers to give some real thought to the employee’s request to ‘consider the request carefully looking at the benefits of the requested changes in working conditions for the employee and the business and weighing these against any adverse business impact of implementing the changes’. It is not for the tribunal to assess the substance of the employer’s decision or to decide whether it fell within the ‘band of reasonable responses’.[22]The employer can only refuse the employee’s flexible working request for a valid business reason. There are eight such reasons, which include; detrimental effect on ability to meet customer demand, detrimental impact on quality. Employers must act in good faith, in that they must genuinely consider that one or more of the statutory grounds for refusing the request applies.[23]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 section 80G(1),(b) that a decision by his employer to reject the application was based on incorrect facts or(c) that the employer's notification under section 80G(1D) was given in circumstances that did not satisfy one of the requirements in section 80G(1D)(a) and (b). In this case, (c) does not apply.[24]The claimant’s argument before the Tribunal is that the decision to reject his application for flexible working was not properly considered or indeed considered at all rather there was an application of a diktat “coming from the top”. The claimant considers that the reasons articulated in the decision letter and the appeal are statements of opinion and do not reflect facts to base the decision to reject his appeal upon. There is no argument being made that the process followed by the respondent was defective, however the claimant says that considered overall the respondent failed to deal with his application in a reasonable manner.[25]The Tribunal have considered the reasons for decision made by Jack Norris to refuse the claimant’s request for status quo in respect of his working arrangements. We note that Jack Norris considered that when there are any issues with the respondent’s “technological operations or infrastructure, or P1 incidents (incidents that are classified as business critical and which need to be resolved as a matter of urgency), it is always far more beneficial to have people on site who are ready to jump up and work with colleagues to resolve the issue straight away.” This is part of what the claimant’s role involved and having the entire team in one room together more helped the respondent to deal with problems more effectively and swiftly. (J) Page 4 of 7[26]Jack Norris considered that while the claimant had been working to an adequate standard from home for up to three days per week there were some shortcomings and that the respondent could improve response times and collaboration with colleagues by being in the office more frequently as a team. This was not intended as a criticism of the claimant’s performance but continuing the hybrid arrangements would, in his view, have a detrimental impact on quality and performance, and the respondent’s ability to meet customer demands (internal and external) compared to a greater level of in person attendance.[27]Jack Norris considered that having colleagues in the office three days a week would help improve ways of working, collaboration, problem solving and performance and therefore that accepting the claimant’s request would have a detrimental impact on quality and performance and the respondent’s ability to meet customer demand.[28]Jack Norris considered that granting the claimant’s request would have a detrimental effect on ability to meet customer demand, and detrimental impact on quality. We are satisfied that these were his genuine conclusions based on his view of the way that the respondent worked and in particular the claimant’s part in the respondent’s operations. The factual basis on which he reached these conclusions is in our view explained and we do not consider that it can be dismissed as mere opinion thus lacking the substance to support the three grounds, taken from section 80(1)(b), on which the respondent relies.[29]As to the appeal we note that Martin Gillon’s view is that there are advantages to office working over remote working and he gives some examples in his witness statement at paragraphs 8-10.[30]As to Martin Gillon’s reasons for rejecting the appeal we consider that these are succinctly explained in his witness statement and set out in the appeal decision letter. While Martin Gillon accepted that the initial outcome letter seemed generic this was because the matter related to companywide changes but that these general considerations applied to the claimant’s role.[31]Martin Gillon’s view was that the team in which the claimant worked benefited in terms of quality and performance by having the claimant and his colleagues present for at least three days per week, and that this would also contribute to an improved ability to meet the demand of our customers.[32]The respondent had assessed the temporary hybrid working arrangements which had been put in place in response to the Covid-19 pandemic, and the respondent held the belief that if they continued this would have a detrimental impact on the productivity, quality and performance. Martin Gillon agreed with this assessment and considered that it applied to the claimant as part of the IT team.[33]Martin Gillon explained his view that: (J) Page 5 of 7 “There is an osmosis effect of being in the office and understanding what is going on elsewhere which allows you to understand the needs of the business as a whole and how IT can meet those needs. By attending and working in the open plan office where there are various different teams working in close proximity, including the Service Delivery Team with which the IT teams (including the Mid-range team which Henrik sits in) work closely, our teams would be more aware of what was going on within the business as a whole and could identify the challenges that needed dealing with. This would in turn allow our teams to respond to and resolve these issues more quickly. Furthermore, the physical servers which Henrik works on are located in the Northampton office, so if any issue were to arise in this respect, by being in the office the servers would be more easily accessible should any troubleshooting need to be undertaken by the Hardware team who would then provide direct feedback to the Mid-range team.”[34]We consider that the approach taken by the respondent shows that they formed the view that the granting the claimant’s application for flexible working would have a detrimental effect on ability to meet customer demand, and detrimental impact on quality. The basis for such a conclusion was clearly explained by the respondent. In reaching that conclusion the respondent has proceeded in a reasonable manner. The respondent was not simply applying a diktat from above on all staff and the claimant’s unique circumstances had been considered and assessed in making the decision to reject his application.[35]The evidence produced before the Tribunal does not show that the respondent failed to comply with section 80G(1) or that the decision by the respondent was based on incorrect facts.