Mr P.Wilson - Counsel For the v Sandwell and West Birmingham Hospitals NHS Trust — 2021

The claimant was employed by Sandwell and West Birmingham Hospitals NHS Trust as a Maternity Risk Management Lead Assistant from 2 March 2015, following redeployment. Her case was that at the interview for that role in December 2014 the Trust agreed a permanent flexible working arrangement, including variable start and finish times and the ability to work from home, and that this became a term of her contract. The tribunal found that the claimant likely raised her caring needs and that the Trust’s representatives agreed to accommodate her where possible, but it rejected the submission that those discussions amounted to a concluded contractual offer and acceptance.

The tribunal placed weight on the absence of any reference to a flexible working term in the offer letter or contract of employment, and on the fact that no record of a permanent arrangement was placed on the claimant’s personal file. It found the evidence more consistent with an informal arrangement that changed over time, including the wording in the claimant’s 24 May 2019 email and the performance review and grievance materials, which referred to the arrangement as informal and to a need to formalise it. The tribunal also noted that the claimant had not raised the absence of a contractual record during her employment until 2019, and it found parts of her evidence unsupported or contradicted by contemporaneous documents.

Because the claimant did not establish, on the balance of probabilities, that there was a specific contractual term giving her the flexible working arrangement she claimed, the tribunal held that she had not proved a fundamental breach by the respondent. It therefore did not need to determine whether any act or omission caused her resignation or whether, if there had been a dismissal, it was for a fair reason. The claim was dismissed. The judgment cited section 95(1)(c) ERA 1996, Western Excavating v Sharp, Malik v Bank of Credit and Commerce International S.A., and Meikle v Nottinghamshire CC in setting out the constructive dismissal principles.