Constructive dismissal: impact of restructure on flexible working pattern
Details
An employment tribunal has upheld an employee’s constructive dismissal claim, which arose from the mishandling of a restructure process so that it adversely impacted upon the employee’s agreed flexible working pattern.
The employee, G, worked for RMG 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, RMG unilaterally changed G’s working days so that he was required to work three Saturdays a month. G objected and submitted a new flexible working request; this was rejected, despite other employees’ existing flexible working arrangements being preserved. RMG took the view that the previous arrangement agreed in 2012 was an informal one and as G had not put forward any ways of accommodating his new flexible working request, it was neither practical nor acceptable to agree to his request. G had time off sick and raised a grievance. Following a solicitor’s letter, RMG agreed that there had been a contractual variation in 2012. However, when G returned to work, RMG sought to impose the changes to G’s working hours under the restructure, requiring him to work three Saturdays a month. G resigned and claimed constructive dismissal.
The employment tribunal had no hesitation in upholding G’s claim. There had been a ‘unilateral and unwarranted variation of an express and important term’ of G’s contract (i.e. his flexible working pattern). This was a fundamental breach, entitling G to resign and claim constructive dismissal. RMG should have acknowledged and accommodated G’s working pattern in any restructure - as it had for other employees at the time.
The tribunal also held that the way in which RMG had tried to vary G’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. It proved a costly mistake, as RMG was ordered to pay G a little over £22K in compensation.
Comment: We rarely report employment tribunal level decisions because they are not binding upon future tribunals. However, we have made an exception for this case because it neatly emphasises the importance of considering the impact any proposed restructure may have on pre-existing flexible working patterns.
