THE INDUSTRIAL TRIBUNALS

CASE REF:	  1590/14
2432/14

CLAIMANT:			Sarah Michelle Peebles

RESPONDENT:		First Choice Selection Services Ltd

DECISION 

(A)	The claimant’s claim of breach of Article 112F of the Employment Rights (Northern Ireland) Order (“Statutory right to request contract variation”) is well-founded and it is ordered that the respondent shall pay £1,673 to the claimant in respect of that complaint.

(B)	None of the claimant’s other claims is well-founded.  Accordingly, each of those other complaints is dismissed.

Constitution of Tribunal:

Employment Judge:	Employment Judge Buggy

Members:	Mrs C Stewart
	Mr J Magennis

Appearances:

The claimant was self-represented (but had the able assistance of her partner, Mr David McQuillan).

The respondent was represented by Mr Tom Sheridan, of Peninsula Business Services.

REASONS

1.	The following paragraphs contain some contextual information and some of our findings of fact.

2.	The respondent company (“the Company”) provides recruitment services to employers and to job applicants.  The claimant was employed by the Company as a business support administrator in its Coleraine branch, from 15 May 2012 until 29 September 2014.

3.	From the beginning of 2014, the claimant was on maternity leave.  She returned to work on 9 June 2014.  During that maternity leave period, the claimant had informally asked the Manager of the Coleraine office, Mr Brendan Moffatt, if she would be able to return from maternity leave on flexible working.  He indicated that there would be no problem in complying with her request.

4.	She wanted to reduce her working hours by 60%, and to work on only three days per week.  She lives in Kilrea, which is more than 15 miles from Coleraine.  She had limited access to private transport.     Because of those considerations, the only satisfactory part-time working pattern, from her point of view, would be for her to be allowed to work on three of the five days of the week.

5.	Shortly before the claimant returned to work, it was made clear to her that she would need to make a formal application for flexible working, and that this would be decided, initially at least, by the Area Manager, Mr Paul Crean (as distinct from being decided by the Coleraine Manager).

6.	The meeting in respect of the claimant’s flexible working request took place on 14 May 2014.  Mr Moffatt was present.  However, as was made clear to the claimant, the only decision-maker at the meeting was Mr Crean.  During the course of that meeting, Mr Crean indicated that, in considering the claimant’s request for flexible working, he wanted to avoid setting a precedent.  He explained that previous workers who requested and were refused flexible working, and any future employees who might in future request flexible working, would be able to cite any favourable response to the claimant’s 3-day flexible working request as a precedent in their (those other workers’) favour.

7.	Mr Crean told the claimant that he would indeed allow her to work 60% of the time, on three days of the week, but for three months only.  That would be done, with two alternative purposes in mind.  First, it would allow the claimant to make alternative childcare arrangements, if she ultimately decided to stay with the Company.  Secondly, it would give the claimant time to get a more suitable job elsewhere, if she decided not to stay with the Company.  Mr Crean also offered the claimant the possibility of moving to a receptionist’s position, on the basis that she would be allowed to work five half days a week in that post.

8.	The claimant was very upset and angry about that outcome.  From 21 May 2014 onwards, during the period leading up to her return from maternity leave, the claimant engaged in a number of relatively confrontational communications with the Company, both in writing and in conversation.  

9.	Mr Crean’s decision on the flexible working request (as prefigured during the 
14 May meeting) was specified in writing on 28 May 2014, in the following terms:

		“To clarify our position, I have discussed in detail plans for Coleraine with Brendan [Moffatt] and we have agreed that the office can justify a maximum of 6 staff.  However we feel that to have two of the six working on a part-time basis will impact on the overall balance of the office.  Since the current part-time role is already in position we are not able to address that.  However we feel that agreeing to have a second person not working full-time is not the correct thing to do from a business view point.  As indicated to you at the meeting we do value your work and we would be pleased to have you return to work.

	In order to try to work with you we would offer you a part-time contract for 3 months before you would return on a full-time basis.  If this is not suitable then we would offer a 3 month part-time role to allow you to look at other options that suit your needs.  We are not suggesting that the post may be redundant, what we are saying is we see the post as a full-time one going forward and require it to be filled that way.  That is a decision that clearly you need to make based on your circumstances".

10.	The true reasons for the refusal of the claimant’s preferred pattern of part-time working were those set out in that 28 May communication, and Mr Crean’s wish to avoid creating an “unhelpful” precedent.  (See paragraph 6 above).

11.	The claimant appealed against Mr Crean’s decision.  She sent a letter of appeal on 1 June 2014.  The appeal hearing took place on 31 July 2014.  The appeal was heard by two Branch Managers, Michelle Robinson and Aileen Marks.  At all material times, Ms Robinson and Mr Crean were parties to a personal relationship.

12.	The appeal decision was essentially the same as the original Crean decision; however, the option of deciding to resign with effect from three months time, while working part-time in the meantime (which had been allowed in the Crean decision), was not part of the appeal decision.  

13.	The claimant had returned to work on 9 June 2014.  She was unhappy because of her perception that, on that day, she was ill-treated by the Company in two main respects.  First, she was required to do certain tasks which had not been part of her duties when she had last worked (prior to going on maternity leave).  Secondly, she found that staff were distant in their attitude to her.  

14.	After 9 June, the claimant never returned to work.  She attended the doctor on 10 June 2014 and was signed off with high blood pressure and stress.  She resigned in September 2014.  According to the claim form in the second set of proceedings (case reference 2432/14), the reasons for the claimant’s resignation were as follows: 

	“(1)	Intimidating behaviour by Mr Crean before my return to work in relation to request for appeal and flexible working.

	(2)	A complete breakdown in trust with my manager Mr Moffatt.  

	(3)	[An] attempt to make it impossible for me to return to work i.e rescinding goodwill gesture of returning (which was my suggestion in a meeting not Mr Crean’s) for three months part-time to source alternative employment ...

	(4)	Failure to comply with legal obligation making the process of returning to work as difficult as possible.

	(5)	Changed my role of which they did not notify me at any stage of the process before my return to work”.

15.	However, during the course of the main hearing, the claimant refined her statement of her reasons for resigning and told us:

(1)	She resigned mainly because of the failure of the Company to offer her part-time working on the basis that she would work only three days a week, for 60% of her full-time hours, and because of the failure of the Company to comply with its duties in respect of the handling of her Article 112F application.

(2)	The “atmosphere” and “distance” which the claimant perceived to exist during her only day of work post-maternity leave was a subsidiary reason for her resignation.  

(3)	Another subsidiary reason for the claimant’s resignation was the fact, as she perceived it, that her role had changed, in terms of the tasks which the respondent now required her to carry out, during the maternity leave period.  

(4)	A third subsidiary reason was the withdrawal of the option of working three days per week for three months while looking for other employment.  (See paragraph 12 above).

16.	For ease of reference, and in order to minimise avoidable duplication, we have also included some additional findings of fact elsewhere in this Decision.  

The claims

17.	During the course of this hearing, it was agreed that the claimant’s claims in these proceedings consisted of the following:

(1)	A claim under Article 112H of the Employment Rights (Northern Ireland) Order 1996 (“ERO”), complaining of breach of the requirements of Article 112F.  

(2)	A claim of (constructive) unfair dismissal, under the unfair dismissals legislation.

(3)	A claim of discriminatory constructive dismissal, the relevant discrimination being direct sex discrimination and/or discrimination within the meaning of Article 5A of the Sex Discrimination Order 1976 (“the SDO”).

(4)	Claims of “other” discriminatory mistreatment, contrary to Article 8(2) of the SDO (the relevant discrimination being direct sex discrimination and/or discrimination within the meaning of 
Article 5A of the 1976 Order).

Evidence

18.	The claimant provided oral testimony on her own behalf.  Mr Paul Crean, 
Ms Aileen Mark and Ms Michelle Robinson gave evidence on behalf of the respondent.  

19.	The tribunal had seen a written witness statement which had been provided by 
Mr Moffatt.  Nevertheless, the Company decided not to call Mr Moffatt as a witness.  We carefully considered whether we should draw adverse inferences from the Company’s decision not to call Mr Moffatt.  As a result of comments which Mr Crean made during the course of this hearing, it is clear to us that Mr Moffatt and the Company are no longer on good terms.  In our view, that ill-feeling is a good reason for not drawing adverse inferences from the omission to call Mr Moffatt.  However, the failure to call him as a witness nevertheless makes it inappropriate for this tribunal to take any account of the contents of the Moffatt witness statement, to the extent (if any) that that witness statement supports the defences being put forward on behalf of the Company.   Accordingly, we treated the Moffatt witness statement as being of no evidential significance, to the extent (if any) that the evidence in that statement might support the Company’s case.

20.	We regarded the claimant as a truthful witness.

The Article 112H claim

21.	The claimant makes a claim of breach of Article 112F of ERO.  That Article has to be read in conjunction with: (1) the Flexible Working (Eligibility, Complaints and Remedies) Regulations (Northern Ireland) 2003 (“the ECR regulations”), as amended; and (2) the Flexible Working (Procedural Requirements) Regulations 2003 (“the PR regulations”).  

22.	The relevant provisions (of the ERO and of the 2003 regulations) can be summarised as follows.  

23.	Article 112F empowers a “qualifying employee” to apply to her employer for a change in her terms and conditions of employment, relating to the hours which she is required to work and/or the times when she is required to work, if her purpose in applying for the change is to enable her to care for someone who, at the time of application, is a child in respect of whom the employee satisfies certain prescribed conditions as to relationship.  (It is agreed between the parties that, at all times which are material for the purposes of her Article 112H claim, this claimant was a “qualifying employee” and she fell within the “prescribed conditions” as to relationship).  

24.	Article 112G imposes duties upon an employer in relation to an eligible Article 112F application.  

25.	First, sub-paragraph (b) of paragraph (1) of Article 112G provides that an employer can only refuse an Article 112F application because it considers that one or more of the grounds specified in that sub-paragraph applies.  

26.	Secondly, sub-paragraph (a) of paragraph (1) of Article 112G imposes an obligation on an employer to deal with any relevant application in accordance with any regulations made pursuant to Article 112G; and paragraph (2) of Article 112G envisages the making of regulations which will include:

	“provision for the employee to have a right, if [she] is dissatisfied with the employer’s decision, to appeal against it within 14 days after the date [on which notice of that decision is given to that employee]”.

 	The right to appeal which was envisaged by the quoted part of paragraph (2) of Article 11(2)G was actually conferred by regulation 6 of the PR regulations.  Regulation 6 provides as follows:

	“6.  An employee is entitled to appeal against [her] employer’s decision to refuse an application by giving notice in accordance with regulation 7 ...”.

27.	Article 112H of ERO provides that an employee who makes an application under Article 112F may present a complaint to an industrial tribunal: (1) on the ground that a decision by the employer to reject the application was based on incorrect facts; or (2) that the employer has failed in relation to the application to comply with Article 112G(1).  

28.	Article 112I provides that, where an industrial tribunal finds a complaint under Article 112H to be well-founded, it: (1) must make a declaration to that effect and (2) it may make an order for reconsideration of the application, and (3) it may make an award of compensation to be paid by the employer to the employee.  

29.	Paragraph (2) of Article 112I provides that the amount of compensation shall be such amount, not exceeding the permitted maximum, as the tribunal considers just and equitable in all the circumstances.  Regulation 7 of the ECR regulations fixes the permitted maximum at eight weeks’ pay.  

30.	We are satisfied in this case that one of the reasons for the refusal of the claimant’s application to work on only three full days a week (as distinct from offering to allow her to work part-time on five days per week) was Mr Crean’s worries about creating an unhelpful precedent (a precedent which might be used by other staff who had previously applied for part-time working unsuccessfully, or by other staff who might in the future apply for part-time working).  The avoidance of a precedent is not one of the permitted grounds of refusal.  (See sub-paragraph (b) of paragraph (1) of Article 112G).  

31.	We do accept that the reasons given for the outcome of the application, by the employer at the time of the outcome of the application, were also true reasons for that outcome.  We are satisfied that those “other” reasons were reasons which are within the scope of sub-paragraph (b) of paragraph (1) of Article 112G.  

32.	We consider that the Company failed to comply, in any meaningful way, with its obligation to provide the claimant with a right of appeal, because of the circumstance that the appeal was allocated by Mr Crean to two of his subordinates, one of whom was in a personal relationship with himself.  

33.	In making those observations, we make no judgment as to whether or not Ms Mark or Ms Robinson were actually biased against the claimant’s point of view.  The issue for us was not whether either or both of those individuals was or were actually biased.  Instead, the issue was whether or not there was a real compliance with an obligation to provide a meaningful right of appeal, in circumstances in which, in our view, most reasonable observers would have very considerable doubts about the claimant’s ability, in practice, to experience a fresh approach from the appeal decision-makers.  

34.	We conclude that, because of the two flaws which have been identified above (at paragraph 30 above and at paragraph 32 above), the Company has failed to comply with Article 112G(1).  Accordingly, her Article 112H complaint is 
well-founded.  

35.	The claimant is no longer employed by the Company.  Accordingly, no useful purpose would be served if we were to make an order for reconsideration of the application.  Therefore, we make no such order.  

36.	We have a discretionary power, not a duty, to make an award of compensation, to be paid by the Company to the employee, in respect of the breach.  The amount of any compensation payable must not exceed eight weeks’ pay.

37.	In our view, in all the circumstances of the case, it is appropriate to make an award, and the amount of that award should be six weeks’ pay.  In making those determinations, we have had regard to the following.  

38.	The purpose of the Article 112I power to award “compensation” is essentially punitive, not compensatory.  The concern about creating a precedent is a prohibited ground for refusing an application, although, as already indicated above, we have concluded that other, non-prohibited, grounds were also important reasons for the relevant refusal, and were reasonable reasons for the refusal.  We consider that the withholding of any meaningful right of appeal was an important breach of the procedural entitlements conferred upon Article 112F applicants.  We accept that the respondent Company did take considerable trouble, in terms of process and in terms of detail, in giving consideration to the application.  We note that the Company did offer the claimant an alternative (five days of part-time working), which unfortunately, due to the claimant’s particular circumstances, was unsuitable for her.  

39.	Against that background, and for those reasons, we consider that six weeks pay is the appropriate measure of compensation.  

40.	The claimant was paid gross weekly pay of £278.85.  Accordingly, we award her £1,673.  

The dismissal claims

41.	As already noted above, the claimant invokes two separate pieces of legislation in respect of her alleged constructive dismissal: the unfair dismissal legislation and the sex discrimination legislation.

42.	As Article 126 of the Employment Rights Order (“ERO”) makes clear, the unfair dismissals legislation can be invoked by a person who resigns; however, such a person can only do so if the relevant termination of employment amounted to what is known as a “constructive” dismissal.

43.	Article 8 of the Sex Discrimination Order (“SDO”) makes it unlawful for an employer to “discriminate” within the meaning of the SDO against a female employee, “by dismissing” her.  It is clear law that, in the context of Article 8 of the SDO, a person who has resigned will be treated as having been dismissed if, but only if, she has been constructively dismissed.  (See paragraph (2A) of Article 2 of the SDO).

44.	Against the following background, and for the following reasons, we are satisfied that this claimant was not constructively dismissed.  For that reason, her unfair dismissal claim and her discriminatory dismissal claim both fail.  

45.	For the purposes of the unfair dismissals legislation and/or for the purposes of the SDO, there will be a constructive dismissal if, but only if, the employee terminates the contract in circumstances such that she is entitled to terminate it without notice by reason of relevant conduct on the part of the employer (including relevant conduct, of course, for which the employer is responsible); in the present context, there will only have been relevant conduct if there has been a repudiatory breach of contract by the employer.

46.	Every contract of employment includes an implied term of “trust and confidence”.  That implied term of trust and confidence can conveniently be further explained, in the following terms.  In a contract of employment there is an implied term that the employer will not, without reasonable and proper cause, conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.  (See paragraph 47 of Volume 16 of “Halsbury’s Laws Of England”, Fourth Edition, 2000 Reissue).  It is clear that any breach of that trust and confidence term will amount to a repudiatory breach of contract.

47.	As already indicated at paragraph 15 above, the claimant has identified all of the behaviour, which, in her view, constituted a repudiatory breach of contract on the part of the employer.  She identified five instances of such misbehaviour.  It will be helpful to look at each such alleged instance separately, before considering the cumulative effect of all of the relevant instances. 

48.	First, we do not accept that the employer did anything wrong in notifying the claimant, upon her return to work, of duties, applying to her post, which were somewhat different from those which she had been required to perform prior to going on maternity leave.  (The nature of the duties in most posts evolve over time.  We are sure that the relevant changes in the duties of the claimant’s post were changes which the employer was contractually entitled to impose.  We are also sure that those changes of duties were relatively minor and that they were needed because of the Company’s need to modify its business practices in light of changes in the market-place in which it operates).

49.	Secondly, the claimant thought that there was a “chill” in the atmosphere, and that staff were keeping a “distance” from her, when she returned to work.  We are sure that her perception of that situation was probably in line with reality.  However, by the time the claimant returned to work, she had engaged in confrontational communications with the employer.  In those circumstances, it was hardly surprising, and it was not inappropriate, for Management and staff to be less informal, and to be more careful, in their dealings with the claimant, than they had previously been.  

50.	Thirdly, when Mr Crean, at the first stage of the flexible working request decision- making process, agreed that the claimant could work her chosen part-time rota days during a three month period, that agreement was genuinely a gesture of goodwill.  In other words, the Company was purporting to make that gesture, not because it considered itself to be under an obligation to do so, but in order to facilitate the claimant.  That offer was made in May 2014.  By the time the appeal stage of the flexible working process was completed, the claimant had been off work, as a result of sickness, for some weeks.  Circumstances had changed.  In our view, the withdrawal, at that time, of that goodwill gesture was not unreasonable; and that withdrawal therefore cannot be regarded as conduct amounting to, or contributing to, a breach of the implied term of trust and confidence.

51.	Fourthly, in two significant respects, there were flaws in the process followed by the Company in respect of the claimant’s Article 112F request.  (See above).  However, although Article 122G of ERO imposes a statutory duty on the employer to adequately comply with the relevant statutory process, that provision itself also provides adequate remedies for any such failures (the award of a limited financial remedy and the imposition of a requirement upon the employer to reconsider the relevant request).  Against that background, in the circumstances of this case, it seems to us that the two failures to comply with the appropriate process for considering flexible working requests cannot, at least on their own, constitute a repudiatory breach of contract on the part of the employer.

52.	Fifthly, the claimant considered that the Company was in breach of contract by failing to grant her the particular flexible working pattern which she wanted and needed.  However, it is important to note that Articles 112F and 112G do not impose any obligation upon an employer to grant a particular flexible working request.  Instead, the obligations imposed by and under those Articles are much more limited (See paragraphs 21 to 26 above).

53.	Accordingly, in summary, the position is as follows.  The two failures in processing the claimant’s Article 112F application (as identified by us above) were reprehensible.  However, all of the other conduct complained of (as listed at paragraph 15 above), was reasonable conduct and could not properly be regarded as constituting, or contributing to, any breach of the implied “trust and confidence” term. We consider that, in this case, the particular  Article 112G failures, even when taken together, do not, on their own, amount to conduct to which constitutes a breach of the “trust and confidence” term.  Accordingly, we are sure that the Company has not committed a repudiatory breach of contract.

The “other” discrimination complaints

54.	In respect of each of the instances of alleged mistreatment which have been listed above (at paragraph 15 above), the claimant also makes a claim, also under paragraph (2) of Article 8 of the SDO, of discriminatory access to benefits and/or of discriminatory detrimental treatment. 

55.	Article 8(2) makes it unlawful for an employer to “discriminate” against its employee: 

(1)	in the way it affords her access to benefits or facilities, or by refusing or deliberately omitting to afford her access to them; or

(2)	by subjecting her to detrimental treatment.

56.	In our view, in the context of all of the matters listed at sub-paragraphs (2), (3) and (4) of paragraph 15 above, the employer acted reasonably and appropriately.  Accordingly, the conduct mentioned in those paragraphs cannot properly be regarded as detrimental treatment within the meaning of Article 8.  

57.	We next consider the “other” discrimination claims regarding the way in which the claimant’s part-time working request was addressed, and its outcome.  The claimant cannot succeed in either of those claims unless the tribunal concludes that a relevant prohibited ground was a significant reason for the relevant act(s)/omission(s) complained of.  

58.	Those two complaints have been presented mainly on the basis that the relevant discrimination was Article 5A discrimination.  (Article 5A of the SDO is entitled “Discrimination on the ground of pregnancy or maternity leave”).  We are sure that the flaws in the decision-making process, and the decision not to offer the claimant part-time working on only three days per week, were not the result, to any extent, of discrimination on the ground of pregnancy or maternity leave, and that an Article 5A prohibited ground was not a reason for any of the treatment complained of; the claimant has not sought to suggest that the relevant flaws would not have occurred, or that the desired outcome would have been achieved, if she had been seeking a similar part-time working pattern and was not a mother.

59.	We have also considered whether the relevant acts and omissions (relating to the flexible working request) constituted direct sex discrimination against the claimant as a woman.  As the claimant has frankly and honestly accepted, the main problem about the part-time working solution which was offered by the respondent (which was a five-day part-time working week) was the circumstance that the claimant lived far away from the workplace.    (The Company offered the claimant part-time working on five days of the week.  That would have been OK from the claimant’s point of view if she had lived closer to the workplace, but she lived many miles away, in Kilrea).  That home-location circumstance is clearly a gender-neutral circumstance.  The claimant has not sought to suggest that the relevant flaws would not have occurred, or that the desired outcome would have been achieved, if she had been a man who was seeking a similar part-time working pattern.  We are sure that the claimant’s gender was not a reason for any relevant treatment.

60.	No claim of indirect discrimination has been made in this case.  However, we consider that it is appropriate to make some comments about the law of indirect gender discrimination in the context of this case.  

61.	A key component in the SDO definition of indirect gender discrimination is that a relevant provision criterion or practice must 

	“... [put] or would put women at a particular disadvantage when compared with men ...”.

	(See Article 3(2)(b) of the SDO).  	The requirement to work five days per week (as distinct from working three days per week) did cause a particular disadvantage to this particular claimant, but that disadvantage potentially also applied to any employee of the Company who lived far away from the workplace; on the basis of the limited evidence which was made available to us in this case, we are not convinced that that requirement did put, or would put, women at a particular disadvantage compared with men.  

62.	Broadly speaking, Article 63A of the SDO provides that, where, on the hearing of a discrimination complaint, the complainant proves facts from which the tribunal could, apart from that Article, conclude, in the absence of an adequate explanation, that the respondent has committed, or is liable for the commission of, the relevant act of discrimination, the tribunal is obliged to uphold the complaint unless the respondent proves that he did not commit, or, as the case may be, is not to be treated as having committed that act.  

63.	For the avoidance of doubt, we should make it clear that, in considering all of the  discrimination claims, we have kept very much in mind the provisions of Article 63A. However, in respect of each relevant discrimination complaint, the claimant has not been able to establish a prima facie case of discrimination.  That has prevented the burden of proof provisions of Article 63A from having any practical significance in the factual circumstances of that complaint.  

Interest

64.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order 1990.

Employment Judge:       

Date and place of hearing:  4-6 February 2015, Belfast		

Date decision recorded in register and issued to parties: