In Person For the v Mr E Nuttman, Solicitor (Ward Hathaway) — 2020

Mr O Dube worked for London United Busways Limited as a spare bus driver before moving onto a flexible working arrangement in 2014, when the respondent agreed a Monday to Friday pattern with weekends off, subject to review. He later claimed that he had suffered detriments in pay and overtime opportunities after making that application, including an alleged rest day working ban, fewer longer shifts, and less favourable treatment than other drivers. The claim was brought under sections 47E and 48(1) of the Employment Rights Act 1996.

The tribunal did not accept the claimant's case that he had been subject to a rest day working ban from mid-2015. It noted that he had not mentioned such a ban in his written grievance of 21 June 2017 or in later correspondence, and that his payslips showed requests to work and some Saturday work during the earlier period. The tribunal treated the absence of requests for rest day work after June 2015 as consistent with him not seeking that work, rather than being prohibited from it. It also refused a late application to play tape recordings of telephone calls, saying the application came very late, would require time for a transcript and response, and was unlikely to affect the result.

On the alleged reduction in longer shifts and other overtime, the tribunal accepted the respondent's explanation that by mid-2016 it had more drivers available, fewer sickness absences, and a need to allocate work differently. It found that longer shifts became less available for operational reasons, that new drivers were being deployed in a way that made financial and roster sense, and that split shifts had to be allocated fairly after complaints from other drivers. The tribunal therefore found that any reduction in the claimant's overtime opportunities was not because he had made a flexible working application in 2014 but for reasons unconnected with that application. It concluded that there had been no act of detriment and did not need to decide limitation.