Employees now have the right to ask to work flexibly, but if their employer refuses the application, do they have to lodge a separate grievance before they can complain to a tribunal?

The employment appeal tribunal (EAT) has said in Commotion Ltd v Rutty (IDS 797) that one document can fulfil two different functions - both as a grievance letter and an application to request to work flexibly.

 

What were the facts in the case?

Mrs Rutty had worked full time for Commotion as a warehouse packer for two years, when a court granted her a residence order to look after her granddaughter.

She informally asked the warehouse manager if she could work three days a week, but he refused. She then applied in writing in August 2004 to vary her working hours under the flexible working provisions in section 80F of the Employment Rights Act 1996.

That was also refused (as was her appeal) on the grounds that her employer wanted everyone in the warehouse to work uniform hours to create a team spirit.

She then resigned, claiming in her notice letter that she had raised the issue of varying her working hours as a grievance and claiming breach of contract.

 

What did the tribunal decide?

The tribunal found in Mrs Rutty's favour, saying that the company had not satisfied any of the reasons given in the legislation for rejecting an application for flexible working.

It said that the company's argument that her different working hours would have "a detrimental impact on performance" had not been substantiated. Instead, it accused Commotion of having an "outdated response" to a request for part time working.

As for the breach of contract claim, the tribunal rejected the employer's argument that it was inadmissible on the basis that she had not lodged a grievance. It said there was no point in her lodging another grievance before making her tribunal claim, as the company's mind was already made up.

 

What did the company argue on appeal?

On appeal, Commotion argued that it was not convinced that the tribunal had made a clear ruling about whether Mrs Rutty had lodged a grievance when making her application for flexible working, but if it had, it was wrong to have done so.

It said that she should have followed two distinct procedures - one to make a request to work flexibly, and another for lodging a grievance. These were completely separate and distinct.

As for her application to work flexibly, the company argued that the tribunal was not entitled to undertake an objective assessment of its decision, never mind decide whether it was objectively justified.

 

What did the EAT say?

But the EAT disagreed on all counts. It pointed out that the disputes resolution regulations allow for a document "which contains or constitutes the presentation of a grievance [and which] can also fulfil another function about the same or different subject matter."

Although the company had tried to argue that Mrs Rutty could not have been aggrieved by the time she made her formal request, the EAT disagreed. It concluded that she was clearly aggrieved, because she had said so in her resignation letter.

The EAT also said that Mrs Rutty was entitled to present a complaint to a tribunal on the basis that the decision to reject her application for flexible working was based on incorrect facts. "It must follow that the Tribunal is entitled to investigate the evidence to see whether the decision was based on incorrect facts."

It agreed that tribunals cannot decide whether an employer has acted fairly or reasonably when rejecting the application, but they must have the right to look at the reason that the employer is relying on and decide if that is factually correct. In this case, the tribunal was entitled to conclude that Commotion had no evidence to justify their refusal.