Employment Judge EeleyMs S Christie (instructed by solicitor) for claimantMrs J Twomey- Calder (instructed by counsel) for respondentDate 24 July 2025
JUDGMENT
[1]The claimant’s claim that the respondent failed to deal with her application for flexible working in a reasonable manner (in compliance with its duties under section 80G (1) Employment Rights Act 1996) is not well founded and is dismissed. Approved by: JUDGMENT[2]The claimant’s application dated 6 August 2025 for reconsideration of the judgment sent to the parties on 8 September 2025 is refused (rule 70(2) Employment Tribunals Rules of Procedure 2024.).
REASONS
There is no reasonable prospect of the original decision being varied or revoked, because:
Background
[1]The judgment and reasons already given address the issues as they were presented and argued by the parties at the final hearing.[2]The sole basis for the claimant’s claim was that the respondent had not dealt with her application in a reasonable manner (section 80G(1)(a) Employment Rights Act 1996.) Full reasons were given as to why the Tribunal concluded that the respondent had dealt with the application in a reasonable manner.[3]The claimant did not seek to amend her claim to allege a breach of section 80G(1)(aza) Employment Rights Act 1996 (that the respondent had refused the flexible working application without consulting the claimant.) This amendment issue was fully ventilated at the start of the hearing and the claimant decided not to apply to amend her claim. Hence, the Tribunal judgment and reasons do not decide whether there was ‘consultation’ prior to rejection of the application, within the meaning of section 80G(1)(aza). The application for reconsideration is at least partly based on arguments that the meeting of 23 May 2024 could not constitute ‘consultation’ for the purposes of section 80G(1)(aza) but that is not the issue that the Tribunal was tasked with deciding. The Tribunal considered the meeting of 23 May 2024 as part of the way that the respondent dealt with the application and the context to that procedure as part of assessing whether the respondent dealt with the application in a reasonable manner (section 80G(1)(a).)[4]The application for reconsideration raises, for the first time, an argument about statutory time limits. This argument was not the basis of the claim as presented at the final hearing. The time limit set at section 80G(1B) is defined for the purposes of the requirement imposed on the employer at section 80G(1)(aa) to notify the employee of the decision within the applicable decision period. Just as the claimant’s case was not based upon an alleged breach of section 80G(1)(aza), it was also not based upon an alleged breach of section 80G(1)(aa). Had the claimant wished to pursue her claim on the basis of a breach of s80G(1)(aa) she could have included it in the ET1 or sought to amend her claim to include it. The claimant is seeking to alter the basis of her claim after the judgment has been given. It is not in the interests of justice for her to be permitted to do so.[5]The reconsideration application refers to the decision in Bunker v London Underground Ltd (3324388/2019). This is not an appellate decision. Further, in the Bunker case the claimant relied on more than one ground for her claim. She relied on Section 80G(1)(a) (as in Ms Sabine’s case) but also on s80G(1)(aa) and s80G(1)(b). Hence the Tribunal made a finding in relation to compliance with the required decision period (using s80G(1)(aa) and s80G(1B) and (1C). The conclusion that the application was not dealt with in a reasonable manner (s80G(1)(a)) seems to have been explained at paragraphs 183-195 of the Tribunal’s reasons. Those paragraphs do not address compliance with time limits. Compliance with time limits is addressed at paragraphs 206-207.The summary of the Tribunal’s conclusions in line with the list of issues starts at paragraph 225 and summarises the conclusions for the flexible working request at paragraph 230. The claimant suggests that failure to comply with time limits was part of the employer not dealing with the application in a reasonable manner in the Bunker case but this is not clear, if the judgment is read as a whole. There are separate reasons why the claim under s80G(1)(a) is upheld as compared to s80G(1)(aa) and s80G(1)(b).[6]To the extent that it can be argued that the respondent did not comply with the terms of its own internal flexible working procedure, this does not require the Tribunal to find that the respondent has breached the requirements of the statute. Neither a breach of an internal procedure nor departure from the ACAS Code automatically mean that an employer has failed to deal with the application in a reasonable manner. All the relevant circumstances of the case need to be considered. Date: 1 October 2025 Approved by JUDGMENT having been sent to the parties on 8 September 2025 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided:[1]For the purposes of deciding the claimant’s claim I received written and oral witness evidence from:a. The claimant Ms Lisa Sabine, employed by the respondent as CSO Colleague Competency Tester;b. Mr Stephen Aalders, Operations Manager within the respondent’s Motor Team;c. Ms Kim Mulraney, Senior Team Manager within the respondent’s Fraud function.[2]In addition, I had regard to an agreed hearing bundle containing 267 pages. I read those documents to which I was referred by the parties. I also considered the written and oral closing submissions on behalf of both parties.[3]At the start of the hearing a preliminary issue was raised. The ET1/claim form referred to the claimant’s application pursuant to section 80G(1)(a) Employment Rights Act 1996. This subsection states that: “(1) An employer to whom an application under section 80F is made- (a) shall deal with the application in a reasonable manner,” The claimant had made no application to amend her claim. However, the claimant’s witness statement for the hearing also referred to section 80G (1) (aza) which states that such an employer: “(aza) shall not refuse the application unless the employee has been consulted about the application,” Respondent’s counsel challenged the claimant’s entitlement to pursue this issue in the absence of an amendment to the claim. She indicated that any such amendment application would be resisted. She suggested that permitting such an amendment would be prejudicial to the respondent because the respondent had not brought the relevant witnesses to give evidence at the final hearing.[4]I asked Ms Christie to confirm the claimant’s position on this issue. She indicated that there was no application to amend the claim and that the claimant’s case would be argued purely as pleaded, relying on section 80G(1)(a) and not relying upon Section 80G (1) (aza). Consequently, I was not required to make a decision in relation to any amendment application and I proceeded to hear and determine the case based on the case as originally pleaded, namely relying on section 80G(1)(a).
Findings of Fact
[5]The respondent’s internal “Flexibility Works” policy was in the hearing bundle from pages 50-55. Page 53 set out a number of bullet points. One of these states: “Each request will be reviewed and will be given proper consideration. However, flexibility requests which will have a detrimental impact on our customers, or the business, can be declined for operational reasons.” Page 54 states: “Colleagues have a statutory right to make a request. Where a colleague wants to make a statutory request, they should state this in their application. Our process for reviewing that application is outlined here. Colleagues have the right to be accompanied at any formal meeting to consider their request. Colleagues have the right to appeal decline decisions. The appeal will usually be held by a hearing manager within the business with the appropriate skills, who was not involved in the earlier decision to decline.” Page 55 continues: “This is a statement of policy only; it does not confer any contractual rights and may be amended from time to time with or without notice. There is no appetite for waivers or exceptions to the policy.” It can be seen that the respondent’s policy anticipates a request being submitted on its online system, a meeting between the employee and the manager, the manager making a decision and an opportunity to appeal. It is not specific as to the order of these events, albeit by necessary implication the appeal must follow the initial decision making phase.[6]Alongside the “Flexibility Works” policy itself, the respondent had guidance documents for line managers and the colleagues making requests for flexible working.[7]The Flexible Working Requests Guidance for Colleagues (p209) sets out a process which starts with the colleague talking to the manager and having a conversation about what the employee needs. The employee can explain their thoughts and how the proposed changes would help the employee. The process then describes the employee using the respondent’s “Workday” online system to make the official request. This will give the manager a notification. If the employee does not have access to Workday the colleague can write to the manager with the request. At p210 the document refers to a meeting with the manager. It is anticipated that there will be an invitation to talk to the manager about the request and this usually happens within 14 days of submitting the request. The guidance indicates that sometimes there will need to be more than one meeting. There is a guidance page on resolving differences via an appeal if the employee disagrees with the manager’s decision (p211). This suggests that an appeal meeting will take place.[8]The respondent’s guidance for managers in relation to the Flexibility Works policy started at page 220. It included various timelines and included specific considerations to look at in applications for compressed working.[9]The claimant started employment with the respondent in 2004. She had various roles during the course of her employment. In 2020 she made an application to be a home worker, which was granted. The claimant has a significant and serious lung condition. The condition affects her life expectancy. As a result of her condition she seeks to minimise infection risk.[10]In March or April 2020 the claimant started work in the post of “Colleague Competency Tester” for the respondent. In carrying out that role she listens to phone calls between customers and her colleagues in order to ensure that the customers receive the correct financial advice for their situation and do not suffer any financial detriment. The phone calls she listens to are not live phone calls. She is listening to the conversations after the event. The phone calls she listens to involve members of credit control or specialist financial teams and they relate to finance agreements. In short, the customers or businesses having these conversations with the claimant’s colleagues require financial support because they are facing financial difficulties. The claimant was not interacting directly with the respondent’s customers herself. She is not in a customer facing position.[11]The claimant listens to calls which are selected at random and the call recordings can be a number of weeks old by the time she listens to them. She maintains that, because the phone calls are not ‘live,’ she can carry out the work outside what might otherwise be called ‘normal business hours’ of 9am to 5pm.[12]Once the claimant has listened to a phone call, she completes a writeup of the call and marks/scores the respondent’s call handler. She can pass or fail the call handler. Even if she passes the individual concerned, she can indicate that there is a requirement for further learning. If the call handler is marked as a ‘fail’ then the claimant can set up a process of remediation which will be dealt with by a ‘Remediation Team.’ The number of calls that the claimant reviews each day will vary according to a number of factors. A small number of calls will be sent to ‘outcome testers’ to ensure that the actions taken and the marks given are correct and that the customer has not suffered potential or actual financial detriment. This is all taking place within the respondent’s business which is regulated by the Financial Conduct Authority (“FCA.”) There are potential fines for significant non-compliance. The claimant’s role also has a training element. She can take colleagues through ‘competency’ to ensure that they are competent in doing their jobs.[13]The claimant’s write-ups/assessments of the calls that she listens to are not automatically reviewed by a manager. She submits them into the respondent’s system. If remediation is required then the claimant enters the details into a remediation database. There is a feedback mechanism which colleagues can use to challenge the feedback that the claimant has given their work but this is rarely used. The claimant was also involved in training colleagues at various times and indeed carried out some training just prior to going on her maternity leave.[14]Until June 2023 the claimant was working in the Lex Autolease part of the business. Prior to her maternity leave the claimant was working Monday to Friday, full time, from home. Some of the evidence differs as to whether the claimant had an 8 o’clock start or an 8.30 start. However, she finished work at 4pm.[15]The claimant started her period of twelve months maternity leave in June 2023. The material events in this case surround her return to work after maternity leave and the basis on which the claimant wished to do so. After maternity leave the claimant wanted flexible working so that she could choose an appropriate child minder who had a smaller number of children to look after. In this way the claimant could reduce the infection risk posed by her child being placed in childcare. For the reasons already stated, this was of particular importance to the claimant.[16]The claimant proposed that she would spend three full days and one half day per week at work. By reducing from four days to three and half days, the claimant would save approximately £60 per week in childcare fees.[17]On or about 9 April 2024, the claimant had a verbal discussion with her line manager (Laura Roberts) about flexible working. She planned to return to work in June 2024 full time but wanted to change her working pattern. She waited until new updated legislation had been enacted before making the formal written request for flexible working.[18]On 23 May 2024 the claimant had an informal discussion about her flexible working request with Mr Aalders. He knew that a verbal request for flexible working had been made and had prepared for a meeting by consulting with HR and considering the available options. He came into the discussion prepared with options that the respondent could accommodate.[19]I had access to the notes from the meeting (at page 57 of the hearing bundle). From the notes it is possible to see that there was a discussion about the claimant’s lung condition and home worker status. It was recorded that the claimant’s maternity leave was due to finish on 22 June but that the claimant would take annual leave until 29 July and then return to work full time thereafter.[20]Mr Aalders indicated that he had concerns about the claimant working longer shifts in line with her proposals (including in relation to the length of the hours, the impact on the claimant’s health, the availability of management support and the claimant’s need for training on her return to work.) I am satisfied that these were genuine concerns and that Mr Aalders did discuss them with the claimant. Mr Aalders offered an alternative proposal.[21]At this point in time the claimant’s proposal was: Monday- a non-working day, Tuesday- 7.15am to 5.45pm Wednesday-7.15am to 5.15pm Thursday – 7.15am to 5.15pm Friday- 7.15am to 12.15 without a lunchbreak When the claimant was working a full day’s shift she would have a 30 minute lunch break. The proposed Tuesday shift was 10 hours long.[22]The respondent’s counter proposal was: Monday- a non-working day Tuesday, Wednesday, Thursday and Friday from 8am to 5.15 pm with a 30 minute lunch break. The claimant would be working a similar number of hours each week to her own proposal but it would be spread over 4 days rather than 3 ½ days. The longest working day would be 8.75 hours. The claimant’s proposal involved more compressed hours and longer shifts on some days.[23]I am satisfied that the existence of the respondent’s counterproposal does indicate a genuine desire to accommodate changes to allow more flexible working for the claimant although it did not give the claimant everything that she was asking for. It apparently balanced the claimant’s requests against the respondent’s considerations. The claimant provided Mr Aalders with the information on which her request was based and he clearly listened to her to understand the detail of the request and why it was being made.[24]The notes show that there were a number of action points from the meeting. These included that Occupational Health would be contacted for an updated report. Mr Aalders was due to contact HR regarding the company’s stance on a maximum 8.75 working hours per day. Furthermore, the claimant was to gain access to the computer system so that she could submit her formal flexible working request.[25]The claimant submitted her formal flexible working request on the respondent’s system (known as Workday) on 31 May 2024. The request was at page 59 in the hearing bundle. This was submitted with Laura Roberts’ assistance. The claimant proposed two nine and a half hour days, one ten and a half hour day and one five and a half hour day. The claimant needed to submit the request formally in this way so that Mr Aalders could consider it and give a formal outcome based on the available information.[26]The claimant would require some training before she could return to work. The claimant was due to return to work after there had been changes to some of the respondent’s systems. As it turned out, she would be returning to work in the Black Horse team rather than in the Lex Autolease team. The claimant’s view was that she could do any necessary training before she started working on the flexible working pattern that she had proposed.[27]There was no meeting between Mr Aalders and the claimant after receipt of the formal request on 31 May. However, Mr Aalders did consult with Clare Moyles within the business in an effort to ensure consistency of approach to such requests across the business. There are no notes of the meeting and the claimant was not present for the meeting. The Tribunal and the claimant do not know what was said during the meeting.[28]On 14 June 2024 the claimant received the formal outcome to her flexible working request. This is at pages 66 -69 of the hearing bundle. Her request was not approved. The document notes that the longer 9 ½ and 10 hour shifts were a matter of concern, partially because no management support was available for the claimant until after 8am. The respondent had concerns about the fact that the claimant would need retraining and management support and there was a risk in relation to this if managers were not available for the first part of the claimant’s working day, before 8am. Perhaps most importantly, the respondent had concerns about the impact of a lengthy shift on the claimant’s concentration levels throughout the day and the potential detrimental impact on her performance if she was concentrating for such a long period with only a 30 minute break in the middle of the day.[29]Understandably, the claimant was not satisfied with the outcome of the flexible working request. She submitted an appeal on 19 June 2024. This was in the hearing bundle at pages 72 – 73. In her appeal, the claimant made it clear that she was prepared to postpone the start of the flexible working pattern until the required training was complete. She made the point that even during her previous working hours/patterns, there were times when managers would not be available to her whilst she was at work. Further, she asserted that the respondent had provided no evidence that her concentration levels would be adversely affected by her hours. She commented that nobody had raised concerns when she was working twelve hours a day at eight months into her pregnancy.[30]A letter inviting the claimant to an appeal was sent on 9 July 2024 (pages 74- 75). The claimant was given the option of being accompanied to that meeting. The claimant did not take that opportunity to have a companion with her.[31]The appeal meeting took place on 15 July 2024 and it was conducted by Ms Mulraney. The notes from the meeting were at pages 76 to 87 in the hearing bundle. The claimant asserted that, in her view, there was no evidence of the alleged detrimental impact of the proposed working patterns on the claimant’s performance in her role. The claimant reiterated that she does not always have access to a manager to support her during her working hours and that this is not usually a problem. If the claimant needed help, she could wait and speak to the manager once they started work. The claimant made the point that she could work around her training, although she doubted that she would need as much time for the retraining as the respondent seemed to suggest. She pointed out that her proposal meant that the length of her working hours and her break times were compliant with the Working Time Regulations. She again repeated the assertion that she had done twelve hour shifts whilst pregnant and nobody had taken issue with this. The claimant explained the reasons for her request and the basis of her proposal. She also noted that there are no set opening hours and that she could do this work at any time of day. She asserted that it was only the telephony roles which were based on hours from 8.30 am to 5.30 pm.[32]Ms Mulraney asked about the claimant’s childcare arrangements and checked what impact it would have on the claimant if the hours were not agreed as she had requested. The claimant did not want to go part time and did not think that she should have to. She thought (with her background) the training in the business would only take about two weeks. That said, some of the evidence before the Tribunal indicated that, in due course, the training actually took the claimant 8 ½ weeks. The claimant felt very strongly that she had been flexible and that the respondent had not been flexible. She felt that no evidence had been provided for the respondent’s refusal of her request. All the arguments that the respondent was relying on were, in the claimant’s view, short term. She made the point that she would still get the same number of hours done and would still get the same job done. The only thing which would differ would be the times of day at which she would be working. She could not see that there was any disadvantage to the respondent. Towards the end of the meeting Ms Mulraney asked the claimant if there was anything that she wanted to add and the claimant said that there was not. Consequently, I am not satisfied that the claimant was limited as to what she could say during the appeal process. She could say whatever she wished as part of the appeal, even though Ms Mulraney used a ‘question and answer’ format in order to structure the meeting.[33]On 19 July there was a meeting between Ms Mulraney and Mr Aalders. The notes of the meeting were at page 88 of the hearing bundle. There was a discussion about the department opening hours. The department opening hours were Monday to Friday from 8am until 6pm. They recognised that a handful of colleagues do start work before 8am. However, the respondent’s policy was that the maximum number of hours worked per day should be 8.75 hours. Mr Aalders pointed out that colleagues worked various patterns but they were predominantly between 8am and 6pm. The impact of the claimant’s proposal was discussed. They noted that there would be a lack of support for the claimant from peers or managers. The respondent operated a ‘right first time’ approach which meant they preferred the work to be completed when it was started rather than ‘parked’ whilst the claimant waited for managerial guidance and then came back to complete the work later. Mr Aalders also made it known that new toolkits and scoring processes had been implemented since the claimant’s maternity leave so the claimant would need some support in that regard too. They considered the possibility of a trial period for the claimant’s request but this was ruled out from Mr Aalders’ point of view because of the respondent’s maximum 8.75 hours work per day. The respondent would, in principle, be open to trialling working hours outside the period 8am to 5.30 pm but the real issue was the length of the working day. The point was made that a ten hour day would be tough given the content of some of the phone calls that were being assessed (which could refer to such matters as suicide.)[34]Ten days after the meeting, on 29 July, the claimant received the appeal outcome. The outcome letter is at page 90 in the bundle. The rationale for the appeal decision included a number of matters. The respondent concluded that the claimant’s training could take three months and might require one-to-one support during certain parts of that time. It was felt that the claimant’s flexible working proposal limited the options to support the claimant during her training. It was felt that there were risks to performance because of the significant number of hours which would be worked outside of operational hours. It was pointed out that other staff members would be available to support the claimant after 4pm so it was not true to say that even with the respondent’s proposals the claimant would be left unsupported during her working day. The outcome noted that the respondent’s flexible working policy allowed for a maximum 8.75 hour working day and there was concern about the claimant working longer hours and the impact of this on the claimant’s wellbeing. There was a concern about the impact of long shifts on the claimant’s concentration levels and, in turn, on her performance. The point was made that the long hours the claimant worked prior to maternity leave was not a long term arrangement and so could be distinguished on that basis. Ms Mulraney was satisfied that the respondent was treating the claimant fairly and consistently in line with her part of the business. The core reasons that the appeal was not upheld related to the detrimental impact on quality and the detrimental impact on performance. The respondent suggested an option for the claimant which would accommodate thirty five working hours over a four day working week.[35]The claimant did in fact return to work after her maternity leave. In July she started her training to work in the Black Horse section of the business. Since her return to work the claimant had been working with Monday as a non-working day. She worked from Tuesday to Friday from 8am to 5pm with a 30 minute lunchbreak.[36]In her evidence to the Tribunal the claimant’s criticisms were around the absence of a meeting to discuss her formal flexible working request with her before it was rejected. She also focussed on the lack of evidence provided to substantiate the assertion that the proposed working patterns would have a detrimental impact on performance. She reiterated that she was regularly working 12 hour days whilst working up to the start of her maternity leave. She referred to other colleagues starting work before 8am and following a similar pattern to the one that the claimant requested. She reiterated that her proposed working pattern would comply with the Working Time Regulations.
The law
[37]The relevant applicable sections of the Employment Rights Act 1996 are: Section 80F(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— (i) the hours he is required to work, (ii) the times when he is required to work, (iii) where, as between his home and a place of business of his employer, he is required to work, or (iv) such other aspect of his terms and conditions of employment as the Secretary of State may specify by regulations,(2) An application under this section must— (a) state that it is such an application, and (b) specify the change applied for and the date on which it is proposed the change should become effective. “ … Section 80G “(1) An employer to whom an application under section 80F is made – (a) shall deal with the application in a reasonable manner, (aza) shall not refuse the application unless the employee has been consulted about the application, (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- (i) the burden of additional costs, (ii) detrimental effect on ability to meet customer demand, (iii) inability to re-organise work among existing staff, (iv) inability to recruit additional staff, (v) detrimental impact on quality, (vi) detrimental impact on performance, (vii) insufficiency of work during the periods the employee proposes to work, (viii) planned structural changes, and (ix) such other grounds as the Secretary of State may specify by regulations. (1A) If an employer allows an employee to appeal a decision to reject an application, the reference in subsection (1) (aa) to the decision 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 section (1) (aa) the decision period applicable to an employee’s application under section 80F is- (a) the period of two months beginning with the date on which the application is made, or (b) such longer period as may be agreed by the employer and the employee. (1C) An agreement to extend the decision period in a particular case may be made- (a) before it ends, or (b) with retrospective effect, before the end of a period of three months beginning with the day after that on which the decision period that is being extended came to an end. (1D) An application under section 80F is to be treated as having been withdrawn by the employee if – (a) the employee without good reason has failed to attend both the first meeting arranged by the employer to discuss the application and the next meeting arranged for that purpose, or (b) where the employer allows the employee to appeal a decision to reject an application or to make a further appeal, the employee without good reason has failed to attend both the first meeting arranged by the employer to discuss the appeal and the next meeting arranged for that purpose, and the employer has notified the employee that the employer has decided to treat that conduct of the employee as a withdrawal of the application.” Section 80H: “(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 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) (2) No complaint under subsection (1)(a) or (b) may be made in respect of an application which has been disposed of by agreement or withdrawn.(3) In the case of an application that has not been disposed of by agreement or withdrawn, no complaint under subsection (1)(a) or (b) may be made until – (a) the employer notifies the employee of the employer’s decision on the application, or (b) if the decision period applicable to the application (see section 80G(1B) comes to an end without the employer notifying the employee of the employer’s decision on the application, the end of the decision period (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. (3B) If an agreement to extend the decision period is made as described in section 80G(1C) (b), subsection (3)(b) is to be treated as not allowing a complaint until the end of the extended period. (3C) A complaint under subsection (1)(c) may be made as soon as the notification under section 80G(1D) complained of is given to the employee.(4) …(5) An employment tribunal shall not consider a complaint under this section unless it is presented- (a) before the end of the period of three months beginning with the relevant date, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.(6) In subsection (5)(a), the reference to the relevant date is a reference to the first date on which the employee may make a complaint under subsection (1)(a), (b) or (c), as the case may be.(7) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (5)(a).[38]The ACAS Code of Practice on Requests for Flexible Working supplements the basic statutory duty to consider requests reasonably. The Code’s recommendations set out best practice (as indicated in the foreword to the Code.) In the course of making a decision I have had regard the ACAS Code, although I note that a failure to follow the Code does not, in itself, make a respondent liable to legal proceedings. However, Employment Tribunals do take the ACAS Code into account when considering relevant cases. The preamble to the Code sets out the meaning of the terminology used. Where the word “should” is used, this refers to what is considered to be good employment practice rather than a legal requirement. By contrast, the word “must” refers to matters where there is a legal requirement or obligation.[39]Paragraph 8 of the Code states that employers must handle every request in a reasonable manner and this 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.[40]The claimant relies on a number of paragraphs within the Code:• Paragraph 12 which states, “Employers must not reject a request without first consulting the employee. Unless the employer decides to agree to the employee's written request in full, they must consult the employee before they make a decision. In such cases, the employer should invite the employee to a consultation meeting to discuss the request.”• Paragraph 15 which states, “The employer should notify the employee of the time and place in advance of the meeting. The meeting should be held privately.”• Paragraph 19 which states, “A written record of the meeting should be kept which provides an accurate reflection of the discussion that has taken place.”• Paragraph 27 which states, “If the employer receives an appeal, they should arrange an appeal meeting without unreasonable delay following the steps at paragraphs 14 and 15 of this Code”, and• Paragraph 30 which states, “A written record of the appeal meeting should be kept which provides an accurate reflection of the discussion that has taken place.”[41]Paragraph 16 of the Code also states: “The content of the meeting and the way in which it is conducted should allow for a reasonable discussion and consideration of the request. It will usually be helpful to discuss, for example, the potential benefits or other impacts of accepting or rejecting the request, and the practical considerations involved in implementing the request.”[42]The claimant relied on some case law in support of her claim. Both of the case reports relate to decisions at first instance. As such they do not bind this Tribunal but may give relevant and useful guidance in approaching the decision in the current case.[43]Whitmore v London Underground Limited (2300573/2019) concerned a number of issues including an allegation under s80G(1)(a) that the employer had failed to deal with the application in a reasonable manner. It also included consideration of whether the employer’s rejection was based on incorrect facts.[44]Whitmore highlights that a Tribunal can take into consideration whether an employer followed the ACAS Code when considering reasonableness. The relevant paragraph (27) states: “The central question for the tribunal is whether the employer genuinely considered the request rather than approaching it with a closed mind. The tribunal must consider whether or not the employer acted in good faith. Whilst there is no case law stating that compliance with the ACAS Code creates a rebuttable presumption of reasonableness, and vice versa, the tribunal considered that the ACAS Code was a useful starting point.”[45]What constitutes a reasonable procedure will depend on the circumstances of the particular case. The extent of any proven breach of the Code is a relevant consideration but is not determinative of reasonableness. Likewise, it may be relevant to consider the employer’s handling of the process as a whole, including the extent to which it has complied with the ACAS Code or its own policies given the factual circumstances of the employee’s case.[46]Section 80G(1)(a) relates to dealing with the application in a reasonable manner, not the reasonableness of the decision/outcome itself. The ACAS Code states that requests must be handled in a reasonable manner. It does not provide guidance in relation to the substance of the employer’s decision apart from reminding employer of the duty not to unlawfully discriminate and stipulating that, if a request is rejected, it must be on one or more of the potentially permissible grounds set out in s80G(1)(b). In this case the claimant’s request was rejected on the grounds of s80G(1)(b)(v)-(vi) “detrimental impact on quality” and “detrimental impact on performance.” It is not for the Tribunal to assess the reasonableness of the substantive decision/outcome, whether by applying the range of reasonable responses test or some other metric. The limits on the Tribunal’s task are clear from the text of the statute.[47]The case of Summers v BIMS Ltd 1601577/2018 involved a flexible working request by a claimant who worked as an invisible mender in a factory building. The claimant wanted to reduce her working hours. She made a request in writing and handed it in to the Office Manager at her employer, who passed it to the respondent’s Managing Director. The Managing Director discussed the request on the phone with the Office Manager and the claimant’s colleagues. He then spoke to the claimant on the phone and declined her request for reasons related to her colleagues’ concerns. The refusal of the request was confirmed in writing on 29 May 2017. The claimant did not appeal. The claimant made a further informal request for flexible working in December 2017. That latter request was rejected in April 2018 in a message that was passed on to the claimant via the Office Manager. The claimant made a further formal request on 3 May 2018, which was the request under consideration in the Tribunal hearing. This was rejected in a letter dated 1 June 2018 without a meeting to discuss the request with the claimant. The claimant said that she did not receive the letter and thought that there had been no response to her request. The Managing Director did not realise that the letter had not been received. The claimant resigned on 9 August 2018.[48]The Tribunal in the Summers case concluded that the employer did not notify the claimant of the decision within the decision period and that the rejection of the application was based on incorrect facts. Those matters did not form part Ms Sabine’s case as presented at the Tribunal hearing. The Tribunal in Summers also concluded that the respondent did not deal with the application in a reasonable manner. In particular, the employer did not have a meeting or telephone conversation with the claimant about the application. (That is different to the current case where there was a meeting about the request but it took place prior the written application. It was, in reality, a meeting about the request which formed the basis for the Tribunal claim. In Summers the only discussion with the claimant had been in relation to the previous request for flexible working which was considered and decided the year before the request which was the subject of the Tribunal proceedings.) In Summers there was also no offer of a right to be accompanied at a meeting, the respondent did not check that the claimant had received the rejection letter and the claimant was not offered a right of appeal. The Tribunal concluded that these were material errors on the employer’s part. In particular, there might have been a different outcome to the employee’s request and there would have been the opportunity to resolve the incorrect facts on which the employer’s decision was based.
Conclusions
[49]The claimant’s application is pursuant to s80H(1)(a) relying on a breach of s80G(1)(a) Employment Rights Act 19096. The issue for this Tribunal is whether the respondent dealt with the claimant’s application in a reasonable manner. I have looked at all the relevant circumstances of the case. I have looked at the ACAS Code and the respondent’s own internal policy, both of which are relevant but not, in themselves, determinative.[50]I am satisfied that in many cases there may be more than one reasonable way for an employer to determine an application of this sort. Just because the respondent employer does not select the reasonable method proposed by the claimant employee, that does not necessarily or automatically mean that the method the employer does use is unreasonable. Both of the options may be different but reasonable.[51]In essence, in this case there was an oral request for flexible working followed by a meeting at which the oral request was discussed. Both parties made meaningful contributions to that discussion. I cannot conclude, looking at the available evidence, that this was merely a rubberstamping exercise which rubberstamped a decision that had already been made. I cannot say that the respondent’s mind was closed to the request or that the decision had already been made. Indeed, the respondent did not outright refuse the claimant’s application. Instead, the respondent put forward an alternative suggestion for the claimant to consider. Again, in my view, this indicates that the respondent was meaningfully considering the request and taking the claimant’s request seriously.[52]The respondent decision maker went back to the HR department and checked the consistency of the decision in the claimant’s case with other such decisions made within in the business.[53]It is true there was no further meeting with the claimant before the respondent gave the claimant the outcome to the application. However, there is no suggestion or evidence before me that the claimant was materially disadvantaged by not having a further meeting with the manager in order to reiterate what had already been said in the earlier discussion. There is no suggestion that there were further matters or issues arising which the claimant would have raised for the first time at a meeting taking place between 31 May and 14 June. All the evidence that I have heard would tend to suggest that any second meeting would have been a re-run of that first meeting.[54]When the claimant received the decision on the application she appealed, as she was entitled to do. During the course of that appeal she was able to raise any matters that she wished or that she thought were relevant. During the course of the appeal the claimant did not say that the process needed to be completely restarted in order to be considered to be fair and reasonable. She did not flag up that there had been no consultation meeting with her after she submitted the formal flexible working request in writing.[55]The claimant was offered the right to be accompanied at the appeal meeting but did not choose to be accompanied. At the appeal meeting the claimant had a further opportunity to put forward all of her arguments in relation to the flexible working request. Although the meeting was conducted using a ‘question and answer’ format the claimant was asked at the end of the meeting if there was anything else that she wished to add. The respondent’s appeal decision maker then went away and considered the application, spoke to the other manager (Mr Aalders) and then gave a fully reasoned decision.[56]One of the claimant’s arguments is about the absence of any meeting between 31 May and 14 June. Does the absence of a meeting during that period make the process unreasonable in circumstances where there has been a previous meeting at which the oral request was considered and discussed? I do not think that the absence of a second meeting during this period renders the process unreasonable. I am persuaded that I need to look at the substance of what happened rather than focussing on the form that the process took. I have to take a purposive approach. What is the aim or purpose of this part of the legal provisions? In my view, the reason for having such a process is to ensure that an employee can submit a flexible working request to their employer with an expectation that the employer must engage with the request reasonably and meaningfully and then make a proper decision in relation to the request. The employer should not be permitted to pay mere lip service to considering the request. The employer should not be able to reject such a request out of hand. There needs to be a fair and reasonable process to determine such requests. However, the provisions are not designed to guarantee that the employee receives the substantive outcome or answer to their request that they are looking for. This is apparent from the limited way in which the legislation is drafted. It is a right to request flexible working rather than a right to obtain flexible working. The legislative provisions do not suggest that the Tribunal is engaged in making business decisions for or on behalf of the respondent or substituting the Tribunal’s view for that of the employer.[57]It is also important for me to bear in mind that this claimant’s claim is not being decided pursuant to section 80G (1) (aza) regarding consultation. (The claimant specifically declined to make an application to amend to pursue this argument.) Consultation may be a relevant consideration in looking at reasonableness in general terms but it is not the beginning and the end of the consideration. If it were otherwise, the specific provision at section 80G (1) (aza) would be otiose. Whilst I understand the claimant’s focus on the consultation issue, I have looked at reasonableness in the round.[58]Furthermore, in substance, there was no absence of consultation in this case. Rather it is the timing of the consultation within the chronology which is questioned. The process may be out of sequence but in reality, all the component parts of the process were present. There were two meetings but one of them pre-dated the written application. The meeting with Mr Aalders was still a meaningful part of the procedure with the claimant and I have considered it as part of the respondent’s procedure and the manner in which it handled the claimant’s request. I have not ignored what took place at that meeting. That meeting addressed the claimant’s substantive request even though that request had not yet been submitted in writing.[59]I am not persuaded that the absence of the written application/request prior to the meeting on 23 May made any substantive difference to the nature and the content of the 23 May meeting. If the parties are required to adhere slavishly to the terms of a written policy in order to comply with the legal provisions and carry out a reasonable process, then the parties would be required to have a re-run of a meeting that they have already had with no material changes to the nature and substance of the discussion. I am not satisfied that dealing with the application in a reasonable manner means that such a duplicate meeting between the same participants is required.[60]Respondent’s counsel directed me to consider section 80H(3A). She submitted that this subsection means that the relevant decision for the Tribunal to assess is the appeal decision as it is the last decision made by the respondent in this case. In my view this prompts me to look at the process as a whole and not stop my assessment with the decision that was made in June. The respondent’s later actions are relevant to the reasonableness or unreasonableness of the way in which they have addressed the claimant’s application. Nor am I required to close my eyes to the procedure that took place prior to submission of the written application. I do not leave that earlier discussion out of account. I am not persuaded that I am required to ignore the precursors to the written application in making my assessment. Were it otherwise I would be required to consider a state of affairs which is contrary to the reality. There were discussions before the written application. Is the Tribunal required to behave as though those discussions did not, in fact, take place? That would have an air of unreality about it.[61]I do not accept that the respondent has breached the statutory timescale, albeit that is not pleaded as a specific breach in this case. The start of the statutory decision period is the written application on 31 May and the final decision is the appeal on 29 July.[62]Furthermore, I am not persuaded that a breach of the respondent’s own internal policy necessarily renders the process as a whole unreasonable. I am applying the statutory requirements rather than the strict requirements of an internal procedure. The question is whether the respondent has dealt with the application in “a reasonable manner,” whether or not the internal procedure is followed to the letter.[63]I have considered the respondent’s procedural requirements. Page 207 of the bundle indicates that there will be a meeting with a manager to discuss what the claimant is looking for. This was done. The indication was that the whole process (including any appeals) should be completed within two months. There is an argument to suggest that the time starts to run from April and only stops in July. That is more than two months. However, I do not consider it to be an unreasonable approach to such an application. Indeed, the next bullet point at page 207 makes provision for extending time if more time is required. This would tend to suggest that, depending on the circumstances, more than two months may be reasonable. Pages 209 and 210 suggest that the employee will get a meeting, usually within 14 days of submitting the request. This might be read as requiring the meeting after the written request but it does not say that in terms. Indeed page 209 can be interpreted as meaning that the meeting or discussion can take place before the formal meeting.[64]I also had regard to the options for compressed hours for new parents (see p198). There are three options including a four day week or reduced hours up to a maximum of 8.75 paid hours per day. Consequently, the respondent’s decision in this case was in line with its own guidelines at pages 198 to 199.[65]Overall, I am not satisfied that there had been a substantial departure from the respondent’s policy. Any departure is a matter of timing which makes no meaningful difference to the substance of the approach or the reasonableness and fairness of the process as a whole. In the claimant’s case there was still a two-stage process. It is just that the respondent did not wait for the claimant’s formal written application before it carried out the first stage meeting. If there had been any material omissions from the discussions on 23 May they could be addressed, rectified or cured at the appeal meeting.[66]Likewise, I have looked at the alleged breaches of the ACAS Code. Paragraph 12 is the requirement to have a consultation before the employer rejects the request. They did consult the claimant at a meeting albeit this took place before the formal written request. It still took place and it still needs to be taken into consideration. In relation to paragraph 15, the appropriate private meeting was held. In relation to paragraph 19, there is a written record of the meeting and no indication that it was not accurate. In relation to paragraph 27, the respondent arranged the appeal meeting without unreasonable delay.[67]I also note paragraph 8 of the ACAS Code which states, “Employers must handle every request in a reasonable manner. This includes carefully assessing the effect of the requested change for both the employer and the employee.” I take the view, using the ACAS Code as a starting point, that the respondent had in substance complied with it. It certainly complied with the spirit and purpose of it. The only divergence was the order of events at the start of the process. The respondent didn’t wait for the written request before having the meeting. However, I query how the claimant could really have benefited by the respondent refusing to engage with her, unless and until she put the matter in writing. I cannot imagine that this formalistic approach is what is intended by the Code or the legislation. I accept that it was possible to arrange another meeting after the 31 May but I am not convinced that either party would have gained anything by going through the meeting and through the motions of a second meeting in this way. It is not an issue of lack of resources on the respondent’s part, rather a lack of any real need to re-run the meeting once the application had been put in writing.[68]The fact that the meeting on the 23 May might have included other topics of discussion does not mean that it failed to adequately consider and address the substance of the claimant’s flexible working request. The notes show the detail of what was being requested and the alternative proposals were understood and discussed. The claimant was not offered a companion at the first meeting, but she was offered that option at the second meeting. She did not take it. The claimant complains that Ms Mulraney did not note or question the absence of a meeting after the written application was submitted on 31 May but the claimant did not raise this issue as part of her appeal either. Given that the claimant was involved in the process throughout, she was arguably better placed to notice and raise this issue than an appeal officer who was coming to the process afresh.[69]I have reviewed the decision in Summers. That decision is based on different factual circumstances: the absence of a meeting or a telephone discussion and the absence of an appeal. The latter point clearly does not apply in this current case. The issue of the earlier meeting is also distinguishable on the facts of this case. In this case there had been a meeting, albeit prior to the written request. In Summers there was no such meeting (or telephone discussion) about the relevant request at all. Further, in Summers the Tribunal also found that the employer’s decision had been made on incorrect facts and that if the procedural defects had been rectified (e.g. by a discussion/meeting) those incorrect facts may have been resolved and the outcome to the application might have been different.[70]The facts of the Summers case are materially different to those in this case. In Summers the case was also argued on wider grounds than this case including whether the decision was made based on incorrect facts. It was not just about whether the employer handled the application in a reasonable manner. Further, the Tribunal found that having a meeting/discussion in the Summers case might have made a difference to the substance of the employer’s decision. The outcome might have been different. That is not the position in Ms Sabine’s case. In Ms Sabine’s case there had been a meeting (albeit prior to the written application) and the application was properly considered. The decision was not based on incorrect facts. I am not satisfied that having a further, subsequent meeting (after submission of the written application) would have made any material difference to the decision itself. It is a question of form and timing rather than of substance. In those circumstances I do not consider that the Summers decision indicates that Ms Sabine’s claim should succeed. It is distinguishable from Ms Sabine’s case.[71]The reality is that, quite understandably, the claimant wanted the respondent to agree to her specific request. I entirely understand and appreciate why that is. However, I must apply the legal provisions as drafted. The statute does not put the Employment Tribunal in the position of being able to force the respondent to agree to implement the claimant’s proposal against its own wishes. Rather, I must decide the case as argued pursuant to section 80G(1)(a). Unfortunately for the claimant that means that I have concluded that the claim is not well founded and it is therefore dismissed. Approved by: