Employment Tribunals - what do they achieve in practice?

[BemoreBen]

I'm dealing with an issue at the moment where my company have clearly not followed both their own procedures, and UK government/ACAS guidelines. It's a request for flexible working, and it's been denied. My own line management is very supportive but it appears there is strong resistance in other parts of the business to this way of working.

I'm going to appeal using the company's own procedures, but I'm not hopeful of success due as I expect the result to be still a no. On the face of it, I would then qualify to take it to an Employment Tribunal as so far they have not handled the request in a reasonable manner, and they have rejected the application based on incorrect facts.

I'm trying to work out what my end-game is. My opinion has always been that if you end up at an Employment Tribunal, then the relationship between employee and employer is broken beyond repair. In this situation it appears that all an ET can do is tell the employer to reconsider and any financial compensation would be 8 weeks salary. Given that the statutory right is to request flexible working and not to be granted the request, my employer could still say sorry, no and there would be nothing else I could do about it.

Has anyone any experience of an ET being a positive experience for both employer and employee?

None whatsoever. More often than not, if the deteriorated that far then there is nothing left to salvage. My warning here would be that as soon as "reasonable" enters the equation, it takes an awful lot for an employee to win; and if you have an employer resistant to what you want (no matter how "reasonable") then winning won't win you friends or influence people - and if you lose then you may as well resign because you are screwed. And given the backlog of claims which is many months if not years long now, you will have to live with your employer a very long time before you even get there. If you are that keen to vary your working hours, getting a new job would be a hell of a sight quicker and less stessful / risky.

In short - no!

IME, most employees do not succeed at Tribunal which only increases their feelings of discontent with the situation and their employer.

Employment tribunals are, in my experience, a last resort. Usually for an employee to try and make a monetary claim against the company for whatever issue there was or they feel there was.

If you put in a flexible working request and it is refused, they have to write to you with an outcome and give reasons that it was refused. Have they done that? I had a quick Google and I assume they are claiming one of the following:

Rejecting an application
The employer must tell the employee that they’ve rejected the application.

Reasons for rejecting
Employers can reject an application for any of the following reasons:
extra costs that will damage the business
the work cannot be reorganised among other staff
people cannot be recruited to do the work
flexible working will affect quality and performance
the business will not be able to meet customer demand
there’s a lack of work to do during the proposed working times
the business is planning changes to the workforce

Thank you - all three of you are confirming my preconceptions that if it gets to the stage of Tribunal then I'm better off sucking it up or moving on.

@KatherineJaneway I have had verbal feedback via my manager, but apparently I am going to get a written letter from HR. The verbal rationale for rejection does not fall under any of the reasons you've listed, so I am intrigued to see what they are prepared to say on paper.

My manager was trying to raise my spirits by saying I've still got appeal and tribunal to go. Having spent a lot of the last month following an appeal widely discussed on one of the feminism boards (hence the user name), it's struck me as ironic that it's a route being commended to me to follow. Last thing I'd want to do after viewing one "live"!

Difficult op to win this as the list is not limited to what’s provided on here (copy paste from acas) the employer can refuse if they feel it’s a justifiable business need to not change the terms to meet your personal need.

Not following their own procedure or guidelines is fairly irrelevant you would just submit again and they’d say no again.

if I was you I’d accept it’s a no and then decide what to do, ,becayse it’s not going to change.

I think them not following their own procedures or government guidelines is very relevant as it would show fairness and transparency. I'm a bit baffled as this isn't a small company with a poor understanding of procedure, it's a large global company employing lots of professional and technical staff, so I'd assume they'd be better at this. My understanding is that not following guidance is of itself grounds for appeal (and ultimately Tribunal if you take it that far). For example, they have not invited me to a meeting to discuss my application, explain their reservations and give an opportunity to work out a compromise acceptable to everyone (as per the guidance). And you can't submit a new request for flexible working arrangements, you have to wait a year before trying again.

But as is becoming very clear - if they don't want to do it, they don't have to and no-one can make them, no matter how reasonable the request. How I respond to that is up to me, I know that.

I took my employer to an ET, won and am still working for them.

It was very stressful and expensive but I am considering going through it again as I am experiencing more of the same despite having won comprehensively.

For me it was the right thing to do as better than the alternative (no career), but I wouldn't recommend it.

Unfortunately the ET system isn't fit for purpose so do not use it unless you really have no alternative. Walk away and find a better employer.

I also work for a large multinational. They know they are wrong and they know there is no real penalty, so they abuse it.

Tell your MP that the ET system is completely broken and ask them what they're doing about it.

But op they are letting you appeal, which is basically Just a repeat, a do it again, and then they also aren’t trying to say don’t go to tribunal. The point is the fact they didn’t follow their own procedure won’t change their decision, in terms of the decision it’s irrelevant. Their decision will stand.

so appeal do tribunal, but understand it won’t change the decision. So ultimately either look for another job or accept it. You are not entitled to flexible working. You are only entitled to the request. Right now yoire focused on the process, when actually you should be focused on the outcome. And that’s already been out to bed.

IME the threat of a tribunal will often get an out of court settlement, but not for flexible working. The business will be able to show that it doesn't meet business needs, if that's what they're claiming

Your manager glibly saying "oh well, you've always got appeal or ET" is an oft-used technique to kick a request into the long grass because of the timescales and emotional exhaustion that results from the grinding processes that have to be followed. Let's face it, if they wanted to grant your request, they certainly wouldn't be pointing you towards a process that will be demoralising and a time-sink!

For example, they have not invited me to a meeting to discuss my application, explain their reservations and give an opportunity to work out a compromise acceptable to everyone (as per the guidance). And you can't submit a new request for flexible working arrangements, you have to wait a year before trying again.

Bear in mind that "guidance" including what is on the ACAS website is very much the recommended way of handling things, a gold standard. Organisations are free to use their own procedures which can be a cut-down version, including a 1 step process of "we've considered your request and it's a "no" due to xyz business reason". You can call your employer to account for not following their own stated policy and process, however be prepared for them to fudge it, prevaricate and obfuscate if ultimately they don't want to grant your FW request.

Out of interest, what reason did your manager give for the rejection?

My question too? I can’t see a reason that wouldn’t fall under the reasonable decline pile really, given that pretty much anything could be used as a business justification

I went through this many years ago and the bogus reason for declining my request for condensed hours was that I would start before and finish after my manager (we were talking 8-5.30 so not extreme) and so he wouldn’t be able to be sure I was doing the correct hours. In addition he said that he’d tried it before with someone else who had a long commute and it hadn’t worked well for her considering the extra organising needed for getting a baby sorted in the morning (I had a 10 minute walking commute and an on-site nursery). All of this was delivered to me in a meeting where I had had an hour’s notice of the meeting and was chastised for arriving with a baby (apparently my husband who was at work at the time they called summoning me should have looked after him).

I did get what I wanted in the end because HR were so appalled at my treatment and the reasons given weren’t business reasons. But it sounds like HR have been part of the decision making process here so might be harder for you.

I’m also curious as to the reason as it’s so easy to come up with a reason that’s acceptable. A simple we can’t as then we’d set a precedent and others wOuld need to be permitted it, which would damage the business is fairly gold standard. Or it’s more difficult to manage is also good. There is very little they could say that wouldn’t be acceptable unless it’s just “nah, we are unreasonable”.

the op seems to be focusing on process when it’s just a flexible working request not a disciplinary or dismissal, the company can say no, they can’t be forced to grant it, and if they didn’t follow their own process, ok, take them to task but it’s utterly irrelevant in terms of the decision, it’s not, oh we didn’t follow process we best allow her to flexible work.

Unless things have changed precedent isn’t something that can be used - either by the requesting party to support their request or by the employer to refuse a request

HR believe it’s not good for employees mental health/work life balance. It’s a request for compressed hours, ie 5 days in 4 and I’ve already been trialling it successfully for 3 months (as per the employee handbook procedure).

That seems a fairly ridiculous reason given that it’s a typically quite popular option that gives a longer period of downtime at the end of the working week. It could be excellent for your well-being.

will be interesting to see what rhey put in writing, as that’s a daft reason and they can easily come up with something much more substantial

That's ridiculous in my opinion. However I have heard managers who think granting a 4 day week for full time hours means that other FT employees would be annoyed and feel they were doing more unpaid hours than the 4 days a week person.

A pilot has recently started with over 70 companies taking part to trial this for 6 months. I hope it is successful as I'd love to have that as an option.

I had my direct manager shout in my face at a meeting then try to discipline me for declining a non essential offsite meeting a short while later

took 3 years (thanks corona!) £10s of thousands of legal expense. The stress was off the charts. We settled the week before tribunal and the settlement didn’t cover what it cost us to get there

but They had to spend a lot more money than I did. And I’m taking that as a win.

there is no justice system. It’s all about how much money you have.

your issue won’t win unless there’s something blatantly discriminatory and even then, if they don’t concede, it’ll cost you a huge amount of money to get there.

It's clear a Tribunal in this case would be a futile exercise for all the reasons given - I think my manager has a naive idea that its some kind of external arbitration that would be legally binding on the company, which is why they keep mentioning it.

My employer is generally modern and forward thinking with progressive policies that go above and beyond the legal minimum for employee welfare. They aim to be an employer of choice in our industry. I'm trying to reconcile that with this situation - reading between the lines of what my manager has said I conclude that there is someone somewhere fairly senior in the HR organisation that is against compressed hours (like CaptainBeaky's manager) and doesn't want it to happen. But they are struggling to find a rational, business related reason to turn it down, hence the delays, silence and ridiculousness.

You would be very unlikely to succeed in an employment tribunal in this area. Your employer only has to consider flexible working. If they decide that they can’t do it for business reasons the tribunal won’t interfere with that. Bringing an action against your employer will likely destroy the relationship and lead to you being dismissed. Also it’s difficult and time consuming.

an employment tribunal is a last resort. It’s not an option in this case.

Just to update - it took another month from my original post to receive the letter denying my flexible working request. It was denied on the grounds that compressed hours would affect quality and performance.

I appealed, on two grounds - firstly that they had not taken all facts into consideration when making the decision, and secondly because they had acted unreasonably by not following their own procedures/taking a long time to make a decision. The appeal went to someone entirely different in HR, and to cut a long story short, my appeal was upheld (on the second grounds, not the first) and I can work compressed hours.

So good news and I've avoided having to contemplate the whole tribunal question. What a palaver though.

Great news! Thanks for sharing!

That's great news OP