An employee’s failure to return to work after her maternity leave amounted to acceptance...
Employment Law Cases
Restructuring and impact on agreed flexible working pattern
Gregory v Royal Mail Group Ltd
An employer’s handling of a restructure which impacted upon an agreed flexible working pattern led to a successful constructive dismissal claim.
Mr Gregory worked for Royal Mail as a postman. In 2012, he made a flexible working request to exempt him from working weekends as this was when he saw his daughter under an access arrangement. His working days were varied (to Monday to Friday working only) by a signed letter from his line manager.
In 2015, following a restructure, Mr Gregory’s working days were altered requiring him to work three Saturdays a month. He objected and submitted a new flexible working request. This was rejected, despite other employees’ existing flexible working arrangements being preserved. Royal Mail took the view that the previous arrangement agreed in 2012 was an informal one and as Mr Gregory had not put forward any ways of accommodating his new flexible working request, it was neither practical nor acceptable to agree to his request.
Mr Gregory had time off work with ill health and raised a grievance. Following a solicitor’s letter, Royal Mail agreed that there had been a contractual variation in 2012. When he returned to work, Royal Mail sought to impose the changes to his working hours under the restructure, requiring him to work three Saturdays a month. He resigned and claimed constructive dismissal.
The tribunal had no hesitation in upholding his claim. There had been a ‘unilateral and unwarranted variation of an express and important term’ of Mr Gregory’s contract. This was a fundamental breach, entitling him to resign and claim constructive dismissal. Royal Mail, however inconvenient and costly, should have acknowledged and accommodated Mr Gregory’s working pattern in any restructure - as it had for other employees at the time.
The tribunal also held that the way in which Royal Mail had tried to vary Mr Gregory’s contract - imposing the changes on only a month’s notice with no right of appeal, having conceded that it had been varied in 2012 - was a breach of the implied term of trust and confidence.
Royal Mail was ordered to pay a basic award of £10,577 and £11,494.72 for loss of earnings.
Link to judgment: http://www.bailii.org/uk/cases/UKET/2017/2402587_2016.pdf
The tribunal, while having some sympathy with Royal Mail’s desire to achieve efficiencies and headcount reductions via the restructuring, emphasised that an employee’s contractual rights cannot be ignored, even if this is inconvenient and more costly for the employer.
Some HR learning points:
- Even if your contracts contain express flexibility clauses entitling you to vary the terms, such a power must be exercised reasonably to avoid a tribunal finding that you’ve undermined the implied term of trust and confidence.
- If you agree to a change the employee’s terms of employment in the manner requested by the employee, this a permanent change to their contract. There is no provision in law for the employee’s contract to revert back to what it was before. For example, if an employee applies for and is allowed flexible working to care for an elderly parent, and the parent dies soon after, then neither you nor the employee will be able to require the other to revert to the pre-flexible working status quo. It can only be done by agreement.
- To avoid difficulties on reverting back to previous terms it may sometimes be sensible for a specific agreement to revert to be agreed as part of some flexible working arrangements.
- There is nothing to stop you agreeing a trial period with an employee in the new flexible role, and this is specifically contemplated in the ACAS guidance.
See also our guide to Changing Terms and Conditions of Employment.