Jordans has teamed up with Barrister Allan Roberts from Guildhall Chambers to create this helpful tool which enables users to simply and quickly estimate the likely pension loss for claimants in Employment Tribunal cases.
Try out this free service today!
Mr Gregory was employed by Royal Mail as a postman. In 2012, he made a flexible working request to exempt him from working weekend hours as he saw his daughter at weekends under an access arrangement. Mr Gregory's working days were varied accordingly by a signed letter from his line manager.
In 2015, following a restructure, Mr Gregory's working days were altered requiring him to work three Saturdays a month. He objected and submitted a new flexible working request. This was rejected despite other employees' (who were considered to be protected under the Equality Act 2010) existing flexible working arrangements being preserved. Royal Mail argued that his contract of employment had not been permanently varied by the previous flexible working request and that this no longer applied.
Mr Gregory took a period of sickness absence due to stress. Following a letter from his solicitor, Royal Mail acknowledged that there had been a contractual variation to his working hours in 2012. On Mr Gregory's return to work, Royal Mail sought to impose the changes to his working hours. He resigned and claimed constructive dismissal.
The tribunal held that Mr Gregory had been constructively dismissed. It found that there had been a "unilateral and unwarranted variation of an express and important term of the claimant's contract of employment". This was a fundamental breach of contract entitling Mr Gregory to resign and claim constructive dismissal. The tribunal also found that the manner in which Royal Mail had sought to vary Mr Gregory's contract of employment - imposing the changes on only a months' 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.
Royal Mail was ordered to pay a basic award of £10,577 and £11,494.72 for loss of earnings.
This case highlights the issues employers can face when seeking to make changes to an employee's terms of employment following agreement to vary their working patterns.
Employers should ensure that they have a solid business case for making changes to working patterns, particularly following a flexible working request. In this case, the tribunal held that "it was not physically impossible for the respondent to maintain [Mr Gregory's] Monday to Friday working pattern, it was merely unsatisfactory, inconvenient and more costly to the respondent."
Even where the employee's contract of employment contains an express contractual right entitling the employer to vary the terms, it is important that this exercised in such a way that does not undermine the implied term of mutual trust and confidence.