Singh v Pennine Care NHS Foundation Trust (Flexible Working)

An Employment Tribunal considering whether refusal of a flexible-working application was based on incorrect facts must investigate the factual basis for the employer’s decision. It may examine the likely operational effect of granting the application, including whether work could be covered without disruption or additional staff. It must not substitute its own view of the fairness or reasonableness of the refusal.

Reasons are adequate if, read in context and with material expressly adopted by the Tribunal, they make clear why the factual challenge failed. Greater detail may be desirable, but a Tribunal need not undertake a minute analysis of every rota or document where its acceptance of the employer’s evidence and rejection of the contrary case are intelligible.

The claimant, a nursing assistant who had worked nights, requested day shifts because her childcare arrangements had changed. The NHS Trust refused the request, relying on additional cost, a detrimental effect on service and quality, and inability to reorganise work among existing staff while maintaining safe minimum staffing.

The Employment Tribunal upheld her procedural complaint and awarded compensation. It dismissed her separate claim under section 80H of the Employment Rights Act 1996 that the refusal was based on incorrect facts. It accepted the manager’s evidence about staffing, safety and budgetary constraints, notwithstanding the claimant’s rota evidence.

Permission to appeal was granted on the sole issue whether the Tribunal had adequately reasoned its rejection of the factual challenge, particularly the contention that shifts could have been arranged to accommodate the request.

1. Appeal dismissed. The Employment Tribunal’s reasons, though brief and capable of fuller explanation, were just adequate.
2. The relevant question under section 80H of the Employment Rights Act 1996 was whether the refusal rested on incorrect facts. It was not for the Tribunal to decide whether the employer’s decision was fair or reasonable. Consistently with Commotion Ltd v Rutty, it could examine the surrounding circumstances and the effect of granting the request in order to test the factual accuracy of the employer’s stated reasons.
3. The Tribunal had identified the manager’s evidence as clear and cogent. It thereby accepted the evidence of difficulties in obtaining safe staff cover, the cost of external cover, and the need to retain sufficient qualified and unqualified staff on night duty. Its express reliance on the refusal letter showed that it adopted the three linked operational reasons set out there.
4. The Tribunal had also addressed the claimant’s rota case. Its statement that the rotas did not establish incorrect facts necessarily rejected the contention that the requested arrangement could be accommodated from the existing staff complement. The Tribunal could have identified the particular rotas and explained its conclusion more fully, but it was not required to conduct a minute analysis of numerous documents.
5. Read in context, including the evidence, the refusal letter and the briefing paper to which it referred, the decision sufficiently acquainted the claimant with why she had failed to prove an incorrect factual basis. No remittal for clarification or amplification of reasons was required.

• Employment Appeal Tribunal: Appeal dismissed. The Employment Tribunal’s dismissal of the section 80H factual challenge was upheld.
• Employment Tribunal (Manchester): Decision dated 4 September 2015. The claimant succeeded on a procedural flexible-working complaint and received compensation, but her claim that refusal was based on incorrect facts was dismissed.