Mrs F Kelly v Norfolk & Norwich Hospital NHS Foundation Trust — 2021

Mrs F Kelly was a Biomedical Scientist employed by the Norfolk & Norwich Hospital NHS Foundation Trust. After Flybe stopped the Norwich-Exeter flights in October 2019, she asked to change to a repeating pattern under which she would work one week in the department and the following week from home in Cornwall, with very long hours in one week and shorter hours in the next. The tribunal recorded that she had made several earlier flexible working requests, all of which had been granted, and that the Respondent's line manager, ML, initially considered the new proposal, consulted senior colleagues, and then allowed the formal request in principle.

The tribunal found that there had been some delay, but held that it was explained by the Christmas period, the Claimant's annual leave, ML's workload, and later HR and Internal Governance queries about health and wellbeing and patient confidentiality. The request was formally agreed at the meeting on 21 January 2020 for an initial six-month period, with a start date of 3 February 2020, and this was confirmed in writing the next day. The tribunal rejected the Claimant's case that the process was "inept" or that she had been left "hanging" without support.

The constructive unfair dismissal claim failed because the tribunal did not find a fundamental breach of the implied term of mutual trust and confidence. It held that the delays and administrative issues fell short of the serious failing needed to amount to a breach, that the Respondent was entitled to treat the proposal cautiously because it was a significant change in working pattern, and that ML's email of 27 January 2020 did not justify the Claimant's belief that the agreement would be withdrawn. The tribunal concluded that, in context, the matters complained of were not unreasonable or sufficiently serious to justify resignation.

The section 80H ERA complaint was also dismissed. The tribunal held that the application had been notified within the three-month decision period and that, for the same reasons as in the constructive dismissal analysis, it had been dealt with in a reasonable manner. No monetary remedy was awarded.