Unilaterally Varying Flexible Working Arrangements - A Cautionary Tale

Unilaterally Varying Flexible Working Arrangements - A Cautionary Tale

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Expert Author Robert Reddin
Here is a cautionary tale about the costly consequences faced by an employer that unilaterally varied an employee's previously agreed flexible working arrangement. The facts of the recent employment tribunal decision in the case of Holt v Bannatyne Fitness are used to illustrate the point.
Requesting a flexible working pattern
In the UK, employees with 26 or more weeks service have a statutory right to request a flexible working pattern. To make a request for flexible working an employee must:
  • Make their request in writing, state the date the request is made, the change to working conditions they are seeking, and the date they would like the change to take effect;
  • State whether they have made a previous application for flexible work and the date of that application;
  • Say how they think the proposed change may affect the business; and
  • Say if they are making their request in relation to the Equality Act 2010, for example, as a reasonable adjustment for a disabled employee.
Any request that is accepted will make a permanent change to the employee's employment contract. It is good practice to issue a new employment contract that accurately reflects the agreed flexible working pattern.
What is a contract of employment?
A contract of employment is an agreement between an employer and employee and is the basis of the employment relationship. An existing contract of employment can be varied only with the agreement of both parties. Changes can be agreed by with either on an individual basis or through a collective agreement.
The facts of Holt v Bannatyne Fitness
Ms Emma Holt worked as a beauty therapist at a branch of Bannatyne Fitness for almost 10 years. She had a flexible working agreement with her employer to only work Monday to Friday because she was unable to arrange childcare cover at weekends.
However, in early 2016, senior managers at the fitness centre insisted Holt work weekends and changed her working arrangements without her consent and against her wishes. Holt persisted in her refusal to work weekend shifts because there were no weekend childcare facilities open in the area in which she lived.
Holt raised a formal grievance, but a senior manager did not conduct "any meaningful investigation" into her complaints. She was later made redundant.
A claim for unfair dismissal and sex discrimination was brought in the employment tribunal. Bannatyne Fitness admitted unfair dismissal, but denied the allegation of sex discrimination. In admitting the unfair dismissal claim, the employer acknowledged that Holt's dismissal was not due to a genuine redundancy situation.
The tribunal ruled that not only was Holt unfairly dismissed, but she had also suffered sex discrimination. She was awarded £18,399, which included £10,399 for unfair dismissal and £8,000 for injury to her feelings.
What lessons can employers learn from this case?
There are four points employers can take away from this case:
  1. Employers should remember that having agreed to a flexible working pattern that is different from the employee's current working pattern, the employer is agreeing to the new terms and conditions of employment requested by the employee. These terms cannot be changed without the agreement of the employee.
  2. Unilaterally varying an employee's terms and conditions of employment is a high risk strategy that can be costly - not only in monetary terms, but also in respect of management time and resources tied up in defending a claim in the employment tribunal as well as damage to the reputations of the employer and the managers involved.
  3. Where an employer has agreed to a flexible working pattern requested to accommodate childcare responsibilities, unilaterally changing those arrangements so that the employee is put at a disadvantage compared with other employees who do not have that responsibility is likely to result in a finding of sex discrimination.
  4. If a grievance is raised as a result of such a unilateral change, failure to conduct any meaningful investigation into the grievance will almost certainly damage the employer in the eyes of the employment tribunal and almost always results in the employer coming second in a two-horse race.

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