Ms J Payne v Lifeways Community Care Services — 2021

Ms J Payne brought a claim under section 80G(1) of the Employment Rights Act 1996 concerning her flexible working request, alleging that Lifeways Community Care Services had not dealt with the request in a reasonable manner and had refused it for an impermissible reason. The hearing was a public preliminary hearing on time limits only; no witness evidence was called, and the tribunal had before it only two flexible working request forms and an internal email dated 3 September 2020.

The tribunal found that the Claimant's request to reduce her hours and change her working pattern was made on 2 March 2021. It accepted the Respondent's case that the Claimant was orally told on that date that the request could be agreed only if she moved onto the Respondent's group terms and conditions. The tribunal rejected the submission that the relevant date should be 16 April 2021, finding no evidence that a written decision was provided on that date and no evidence that the March decision was unclear to the Claimant; it noted that the wording of the Claimant's second flexible working request suggested she understood the position on 2 March 2021.

Applying section 80H(5) and section 80H(6) ERA 1996, the tribunal held that the relevant date was 2 March 2021 and that the Claimant therefore had until 1 June 2021 to begin ACAS early conciliation. She did not start ACAS early conciliation until 30 June 2021 and lodged her ET1 on 8 September 2021. The tribunal also held that the ERA did not require a flexible working decision to be given in writing, and that the ACAS Code's statement that a written decision is good practice did not change the statutory time limit.

The tribunal further held that the claim could not be saved by the extension provision in section 80H(5)(b), because the Claimant had not shown that it was not reasonably practicable to present the complaint in time. It relied on Porter v Bandridge Ltd for the proposition that the burden was on the Claimant to show precisely why the complaint was not presented earlier. As no such evidence was given, the tribunal dismissed the claim.