Can an employer unilaterally change flexible working arrangements?

An Employment Tribunal has recently ruled that a beauty therapist was unfairly dismissed and suffered sex discrimination after she was made redundant following a row over childcare arrangements.

The employee had worked at a fitness centre for almost 10 years and had a flexible working agreement with her employers to work Monday to Friday only so that she could look after her young child on Saturdays and Sundays as she was unable to arrange childcare cover then.

However, in early 2016, senior managers at the fitness centre insisted that the employee work weekends. She claimed that the proposed rota would not bring any additional benefits to the company, and persisted in her refusal to work these weekend shifts.  She also looked into paid childcare but found that there were no weekend facilities open in her area.  She raised a formal grievance but the tribunal heard that a senior manager did not conduct ‘any meaningful investigation’ into her complaints and she was subsequently dismissed for her refusal to work weekends.

The Employment Tribunal found that the employee was unfairly dismissed in breach of her flexible working pattern and had suffered ‘anger, distress and affront’ as a result of her employer’s ‘indirect discrimination’.

This decision shows how important it is for employers to respect flexible working arrangements that have already been approved. The fitness centre in this case did not have a good business reason for changing the employee’s flexible working pattern and made no attempt to resolve the circumstances in relation to her working arrangements which had been in place for a significant amount of time.

Employers should be cautious when agreeing to a flexible working pattern that is different from the employee’s current working pattern. By doing so, they are effectively agreeing to the new terms and conditions of employment which have been requested by the employee.  These terms cannot then be changed later without the agreement of the employee.  Without this agreement the employer risks a potential tribunal claim which can be expensive, time consuming and detrimental to the reputation of the employer.  Furthermore, if the employee raises a grievance as a result of a unilateral change imposed by an employer, failure to conduct any meaningful investigation into the grievance will not sit well with the Employment Tribunal and could increase the value of any award.

If you are thinking of implementing any changes to your employees’ terms and conditions of employment or you have received a flexible working request from an employee, we strongly advise you to contact us and talk through your options. We will help you make a decision that suits your business needs and minimizes the risk of a tribunal claim in the future!

The Backhouse Team

Tel:      01245 893400

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Web:    www.backhouse-solicitors.co.uk

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