GRIEVANCE PROCEDURES

Commotion Ltd v Rutty

EAT: Judge Burke QC, Mr D Evans and Mrs A Gallico; 13 October 2005

The claimant, a warehouse assistant, asked her employers to allow her to work a three-day week to enable her to look after her grandchild. The employers refused, on the ground that to allow her to work part-time would have a detrimental impact on performance in the warehouse, and the claimant made a formal application, pursuant to section 80F of the Employment Rights Act 1996, to change her terms of employment to allow her to work a three- day week. That application was also refused, and two weeks later the claimant resigned. An employment tribunal upheld her complaints of constructive unfair dismissal and breach of the flexible working provisions, finding that the employers had not complied with section 80G of the 1996 Act, in that they had failed to show that part-time work was not feasible and could not be organised so there was no diminution in service to customers. The tribunal also held that, having made the request for flexible working, it was unnecessary for the claimant to have raised a further grievance in order to comply with the statutory grievance procedure under section 32 and paragraph 6 of Schedule 2 to the Employment Act 2002 before bringing her complaint of unfair dismissal, when one of the reasons for her resignation was the manner in which the employers had dealt with that request.

The employers appealed.

The Employment Appeal Tribunal held:

(1) There was no reason in principle why the claimant, having complied with the procedure for making a flexible working application under section 80F of the Employment Rights Act 1996, had then to present a further letter or document in order separately to comply with the procedure for raising a grievance under section 32 and Schedule 2 to the Employment Act 2002, before bringing her complaint of unfair dismissal. Moreover, under regulation 2(2) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 the document constituting the presentation of a grievance for the purposes of the statutory procedure in Schedule 2 could also fulfil another function about the same or a different subject matter. Accordingly, as it was clear that the claimant's case was that the employers' refusal properly to consider her request created an atmosphere that was so bad she felt she had no alternative but to leave, it was open to the tribunal to find that the claimant's flexible working application was also the presentation of a grievance under the 2002 Act.

(2) Since by section 80H(1)(b) of the Employment Rights Act 1996 an employee was entitled to present a complaint on the basis that the employer's decision to reject his application for flexible working was based on incorrect facts, it followed that the tribunal was entitled to investigate the evidence to see whether the decision was based on incorrect facts. While the tribunal was not entitled to look and see whether it regarded the employer as acting fairly or reasonably when he put forward his reason for rejecting the flexible working request, it was entitled to look at the ground asserted as the reason why he had not granted the application and to see whether it was factually correct, and that would involve examining the evidence as to the circumstances surrounding the application, such as the effect of granting it, any potential disruption and the attitude of the other staff. The tribunal was entitled to have had regard to the matters it did when considering whether the employers' assertion was justified and had reached a permissible conclusion on the material before it.

The appeal was dismissed.

Appearances: Tom Dunn (Employment Law UK Ltd, Tunbridge Wells) for the employers; Christopher Carr (CS2 Lawyers, Chesterfield) for the claimant.