Flexible working requests – employment law bulletin 181

In the latest Hamers newsletter, our employment law expert Lynsey Howes looks into the timescale for flexible working requests; plus, disciplinary proceedings and another look at whistleblowing.

Flexible working requests: Walsh v Network Rail Infrastructure Ltd

Flexible working requests should be finalised within a three-month period, including any appeal process, but what if an employee attends an appeal outside of that three month-period – have they also agreed to an extension of the decision period? This was the question the EAT considered in the case of Walsh v Network Rail Infrastructure Limited.

The Claimant in this matter submitted a flexible working request in February 2019. There was a delay in arranging and holding the appeal, which after some discussion was agreed to take place in July 2019. This was obviously outside of the three-month decision-making period.

Prior to the hearing taking place, the Claimant issued proceedings in the Employment Tribunal for failure to deal with the flexible working request within the three-month period prescribed by the legislation. The Employment Tribunal made a finding that the Claimant’s attendance at the appeal hearing was an agreement to extend the period beyond the three months provided in the legislation. The consequence of this decision was that the Claimant had acted too quickly in submitting the claim to the Tribunal.

The Claimant appealed. The Employment Appeal Tribunal accepted the Claimant’s appeal. It stated that if there was an agreement to extend the three-month period this must be clear between the parties. The mere acceptance and attendance at an appeal hearing was not clear enough to be an explicit extension of the period.

Whistleblowing: Fitzmaurice v Luton Irish Forum

In the claim of Fitzmaurice v Luton Irish Forum, the EAT was asked to look at whether it was the protected disclosure that was the material factor in the detriment, rather than the cause of the detrimental treatment.

The EAT found that it was sufficient that the protected disclosure was a material factor in the subsequent detrimental treatment of the claimant and therefore the Employment Tribunal had been wrong in dismissing the Claimant’s detriment claims.

The EAT was clear that the test the Employment Tribunal should have applied when determining the impact of the disclosure on the subsequent detrimental treatment, in this case, the instigation of the disciplinary process was whether the protected disclosures could be severed from the motivation behind the detrimental treatment. In other words, what was the motivation of the employer: was it the protected disclosure or was it the Claimant’s own conduct?

What was the material factor? If it was the protected disclosure, then the Claimant would be able to pursue the detriment claim. If it was the Claimant’s conduct and the protected disclosure was properly severable, then the Claimant would not succeed. The claim has been sent back to the Employment Tribunal for consideration of the point.

Disciplinary procedures: Burn v Alder Hey Children’s NHS Hospital

In the Court of Appeal decision of Burn v Alder Hey Children’s NHS Hospital, two of the Appeal Judges made comments, which although not pertinent to the case they were deciding, make an interesting point about the conducting of disciplinary proceedings.

Singh LJ and Underhill LJ, indicated support for the proposition that an implied term could be instigated into disciplinary proceedings that those proceedings are conducted fairly.

It is established that there is an implied term of trust and confidence in every contract of employment. The idea that both the employer and the employee must act in a way that does not breach that implied term, an idea that both will behave with a certain level of integrity. However, case law also suggests that the implied term of trust and confidence does not apply to the dismissal.

So how do these comments that proceedings should be conducted fairly impact employers and employees in a real‐world scenario? If followed or raised in future cases, an employer who has skipped the investigation stage or refused the submission of evidence or unreasonably refused accompaniment etc., could find that this is a breach of the contract, perhaps supporting a claim of unfair or constructive dismissal.

Regardless of how this suggestion plays out in the future, what is clear is that employers need to ensure that their processes are robust, transparent and capable of full scrutiny by the courts.

Bye for now. Lynsey and the team.

To contact Lynsey or join the employment law mailing list, please email LHowes@hamers.com