Appeal No. UKEAT/0418/05/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 October 2005

Before
HIS HONOUR JUDGE BURKE
MR D EVANS CBE
MRS A GALLICO

COMMOTION LTD 	APPELLANT

MS K RUTTY 	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR TOM DUNN
(of Counsel)
Instructed by:
Employment Law UK Ltd
Pantiles Chambers
85 High Street
Tunbridge Wells
Kent TN1 1YG	
For the Respondent	MR CHRISTOPHER CARR
(of Counsel)
Instructed by:
CS2 Lawyers
Millennium Way
Chesterfield 
Derbyshire S41 8ND	

SUMMARY

Contract of Employment -&- Unfair Dismissal

This appeal gave rise to potentially important points on the flexible working sections in Part 8A of ERA 1996 and on the commencement and effects of the Dispute Resolution Regulations. The employee informally sought flexible working in order to care for her grandchildren; this was refused. She then made a formal application under s.80 F of ERA which was also refused. She then resigned and claimed constructive dismissal. S.32 of EA came into effect a few days before the result of the appeal was notified; she did not go separately through the grievance procedure before presenting her claim for unfair dismissal and discrimination and under the flexible working procedures. The Tribunal found that the employer’s grounds of refusal (s.50 G of the ERA) were not made out, that the employee had been constructively dismissed. Her presentation of the formal application of F.W was on the fault also the making of a grievance. Appeal dismissed. We held, inter alia, (1) that the Tribunal were entitled to examine and decide upon the factual correctness of the asserted ground for refusing the flexible working request, although not its fairness and reasonableness and (2) that it was not, in law, necessary for the employee to go through two sets of procedures in order to comply with the requirements of s32 and Schedule 2 of Employment Act and that it was open to the Tribunal to find that her flexible working application was also the presentation of a grievance. 

HIS HONOUR JUDGE BURKE QC

The Appeal
1.	Mrs Rutty was employed by Commotion Limited, whom we will call “Commotion”, as a warehouse assistant from 9 September 2002 to 11 October 2004.  Commotion operated a warehouse at Tonbridge in Kent.  Mrs Rutty’s job was to work in the warehouse and to pack goods in the school section for orders which had emanated from Commotion’s customers.

2.	By an Originating Application presented on 19 October 2004, she claimed that she had been the victim of indirect discrimination on the part of Commotion, that she had been the subject of an unreasonable rejection by Commotion of her application for flexible working and that she had been constructively unfairly dismissed.  The Employment Tribunal, sitting at Ashford and chaired by Mr Warren, found in a decision promulgated with written reasons on 8 March 2005, in her favour on all three heads of claim and awarded her compensation of £14,038.66.  The make-up of that total it is not necessary for us for present purposes to consider, save to say that no separate remedy was granted in respect of the flexible working head of her claim, no doubt because the maximum compensation payable under that head was included and taken up by the larger compensatory sum awarded for unfair dismissal.  

3.	Commotion now appeal against the Tribunal’s judgment on two main grounds although, in some respects, each ground has in argument been sub-divided into separate points.  The first ground is that the Tribunal ought, pursuant to Section 32 of the Employment Act 2002, to have rejected Mrs Rutty’s claim on the basis that she had not presented to her employer before commencing proceedings any grievance as required by that section and that the Tribunal, in finding to the contrary, acted in error of law or came to a perverse conclusion.  Alternatively, it is put that, in the absence of the presentation of a grievance, the Tribunal ought to have reduced the compensation for unfair dismissal by a minimum of 10% and a maximum of 50% pursuant to Section 31 of the 2002 Act.  We will call this the grievance issue.  It goes only to the unfair dismissal part of the Tribunal’s decision.  It does so because we are told that, so far as the Tribunal’s decision as to discrimination is concerned, that has been the subject of a payment between the parties, is resolved and dealt with and therefore is no longer an issue between them.  

4.	The second ground on which the appeal is brought is that the Tribunal’s conclusion that Commotion had failed properly to respond to Mrs Rutty’s request for flexible working was wrong in law or perverse.  We will call this the flexible working issue and it goes to the Tribunal’s conclusion as to unfair dismissal and also to their conclusion as to the flexible working provisions complaint which was independently made.  

The Facts
5.	The primary facts as found by the Tribunal are not in dispute.  From December 2003, Mrs Rutty and her husband took over the care of their grand-daughter, Jasmine.  The Court made a residence order to that effect in October 2004; but, in fact, Mr & Mrs Rutty were responsible for Jasmine from December 2003.  As a result, Mrs Rutty found it difficult to manage the hours of her full-time job.  Originally she was permitted to work somewhat shorter hours in the afternoon, but plainly she felt that she could not manage on that reduction alone; and she informally asked Commotion to allow her to work a 3 day week.  She was told by Mr Wood, who at the time of the Tribunal’s hearing was no longer, but obviously at the relevant time still was, Commotion’s warehouse manager that it was not possible to grant her request.  She was not happy about that rejection.  Commotion’s reasons were that they were seeking to promote good team spirit in the warehouse, no doubt for the purpose of ensuring that their business went well and satisfied their customers appropriately, and wanted for that reason to ensure that all employees worked standard hours, namely 8.30am to 5pm.

6.	Mrs Rutty then made a formal application to her employers to be allowed to work a 3 day week.  It is not in dispute that that application complied with Section 80(f) of the Employment Rights Act 1996 and the Regulations made in connection with that section, to which we will refer in a few moments.  After a meeting on 17 September, the application having been made on 23 August, Commotion rejected her proposals.  They acknowledged that they were sympathetic to Mrs Rutty’s position but they gave their grounds for refusal in these terms, recorded by the Tribunal in paragraph 5(7) of their judgment:
“The packing is a fundamental requirement of a mail order company, with you being unable to work on Thursdays and Fridays, starting late and finishing early on the other three days, there will be a detrimental impact on performance in the warehouse.
Since my appointment as Warehouse Manager” [said Mr Brown who wrote the letter] “we have plans to change the structure of working hours in the warehouse.  We feel it is very important for staff working there to start work at the same time and finish at the same time.  There is nothing we can do about existing staff if they are employed on a part-time basis.  You are employed as a full-time member of staff, and if you choose to remain as a full-time employee, we would be pleased to carry on as before”.

7.	Mrs Rutty appealed that decision by a letter of 28 September.  Her appeal was considered by Mr Coote; he rejected the appeal in these terms, again set out by the Tribunal, this time in paragraph 5(9) of their judgment: 
“You will understand that we are trying to change the structure of working hours within the warehouse to help create a team spirit by having a uniform working day.  In addition, you must appreciate that shortening your working hours will have a negative impact on the overall warehouse performance and put a strain on our resources”. 

8.	The Tribunal found that Mrs Rutty was unhappy about that; and by a letter of 11 October, sent to Mr Coote and Mr Brown, she wrote as follows, set out by the Tribunal at paragraph 5(10) of their Judgment:
“I write to advise you that I am resigning from Commotion.  As you know, I have raised this matter as a grievance with you and I believe that you have breached the contract between us” 
and she left.  

The Law
9.	It is necessary for us to set out the law in a little detail in this case.  Section 32 of the Employment Act 2002 provides as follows:
“32		Complaints about grievances 
	(1) This section applies to the jurisdictions listed in Schedule 4. [We interpose that it is accepted that those jurisdictions include the unfair dismissal jurisdiction and the sex discrimination jurisdiction, but do not include the jurisdiction to consider and decide upon a complaint under the flexible working provisions of the 1996 Act].
	(2) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if-  
	(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies, and 
	(b) the requirement has not been complied with.
(3) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if-  
(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 has been complied with, and
(b) less than 28 days have passed since the day on which the requirement was complied with”.

The requirement relevant to this case, as is agreed, is the requirement at paragraph 6 of Schedule 2 of the 2002 Act which relates to the standard grievance procedure.  This was not a case which, under paragraph 9 of Schedule 2 to the Act, engaged the modified procedure; and, for present purposes, it is only necessary to set out paragraph 6 of Schedule 2 which provides as follows:
“The employee must set out the grievance in writing and send the statement or a copy of it to the employer.”
There were no other and are no other formal requirements for the presentation of a grievance within Section 32 and Schedule 2.  

10.	Subsection 3 of Section 32 which relates to the time which must pass between the compliance with the requirement of paragraph 6 and the presentation of a complaint does not arise in this case because it is Commotion’s case that no presentation of a grievance occurred at all, rather than that there was one which was too early.  

11.	Section 32(6) provides as follows:
“(6) An employment tribunal shall be prevented from considering a complaint presented in breach of subsections (2) to (4), but only if- 
(a) the breach is apparent to the tribunal from the information supplied to it by the employee in connection with the bringing of the proceedings, or
(b) the tribunal is satisfied of the breach as a result of his employer raising the issue of compliance with those provisions in accordance with regulations under section 7 of the Employment Tribunals Act 1996 (c. 17) (employment tribunal procedure regulations)”.

12.	It is necessary very briefly to refer to Section 31.  That section provides, to put it shortly, that in certain circumstances, if the statutory procedure, including, where required, the grievance procedure is not followed, the Tribunal must, unless there are exceptional circumstances, where the failure to comply is that of the employee, reduce any award by 10% and may, if it considers it just and equitable to do so, increase that reduction up to 50%; but if there are exceptional circumstances, no reduction at all or a lesser reduction may be made.  

13.	These provisions of the 2002 Act are supported by the Employment Act 2002 (Dispute Resolution) Regulations 2004.  These Regulations set out various circumstances in which dismissal and disciplinary procedures and grievance procedures do or do not or may not apply.  None of the exemptions or exceptions to the requirement in Section 32 and in Schedule 2 of the 2002 Act for the presentation of a grievance apply in this case.  Many other provisions are contained within those regulations which are not relevant here and which are not considered in this judgment.  That is an important point because not only in relation to the regulations, but generally, anybody who reads this judgment should appreciate firstly that this is, as far as we know (and this has been confirmed by Counsel who have searched the website) the first appeal to the Employment Appeal Tribunal in which Section 32 of the 2002 Act and the Dispute Resolution Regulations have been examined and, secondly, for that reason we wish to make it clear that, while we wish and propose to assist the parties with our views and conclusions on points which have been argued and which are necessary for our decision, we are in this appeal addressing only those points and the arguments that have been presented to us in this case on those points.  We say the same about the position in relation to the flexible working provisions which, we are told by Counsel, have also not been considered before at an appellate level.  So far as the Dispute Resolution Regulations are concerned, it is only necessary for present purposes to refer to paragraph 2(2) of those Regulations which provide as follows:
“(2)	In determining whether a meeting or written communication fulfils a requirement of Schedule 2, it is irrelevant whether the meeting or communication deals with any other matter (including a different matter required to be dealt with in a meeting or communication intended to fulfil a requirement of Schedule 2)”.

14.	Schedule 2 there referred to is, of course, Schedule 2 of the 2002 Act and is the location of the requirement which is to be fulfilled pursuant to Section 32 of that Act.  Accordingly, paragraph 2(2) of the Dispute Regulations has the effect that a written document which sets out a grievance is capable of fulfilling the requirements of Section 32 of the Act and of complying with the Regulations even though it may also fulfil the function of constituting a complaint or application or other communication of a different nature in relation to the same matter or a complaint or application or other communication about a different matter.  

15.	Finally, on the grievance issue, it is necessary to refer to the Employment Act 2002 (Commencement No 6 and Transitional Provision) Order 2004 which provides by paragraph 2(2) as follows:
“The following provisions of the Act shall, subject to Article 3, come into force on 1 October 2004”
and those provisions include Section 32 and Section 31 in so far as they are material for present purposes.

16.	Paragraph 3 of that commencement order sets out transitional provisions, namely that Sections 31 and 32 and Schedule 2 of the Act shall not apply in relation to a grievance where the employee has presented a complaint to the Employment Tribunal about that grievance prior to 1 October 2004.  

17.	We now turn to the flexible working provisions.  They are derived also from the Employment Act 2002 but they have taken effect by way of insertion into the Employment Rights Act 1996 of Part 8A which contains four new sections, 80F to 80I in that Act.  Section 80F provides by subsection 1:
“80F Statutory right to request contract variation 
(1)	A qualifying employee may apply to his employer for a change in his terms and conditions of employment if-
(a)	the change relates to-
		(i) 	the hours he is required to work, 
(ii)	the times when he is required to work
(iii) &  (iv) [not relevant]
(b)	his purpose in applying for the change is to enable him to care for someone who, at the time of application, is a child in respect of whom he satisfies such conditions as to relationship as the Secretary of State may specify by regulations”. 
Sub-section 2 of 80F provides details as to how an application under Section 80F should be constituted.  Subsection 3 states that the application must be made, in effect, before the relevant child reaches the age of 6 or, if disabled, the age of 18; it is an important aspect of the flexible working provisions that they only apply to those who claim to be caring for a child within the specified conditions as to relationship.  The conditions of eligibility, to which we will come in a moment, are relatively strictly confined. 

18.	Section 80G sets out the employer’s duties in relation to an application under Section 80F; it provides that:
“An employer to whom an application under section 80F is made - 
(a)	shall deal with the application in accordance with regulations made by the Secretary of State, and 

(b)	shall only refuse the application because he considers that one or more of the following grounds applies”
 
and then nine grounds are set out which we do not propose to recite in this judgment, save to say that ground 6 is “detrimental impact on performance” and ground 2 is “detrimental effect on ability to meet customer demand”.  

19.	Section 80H(1) provides that:
“(1)		An employee who makes an application under section 80F may present a complaint to an employment tribunal- 
(a)	that his employer has failed in relation to the application to comply with section 80G(1), or 
(b)	that a decision by his employer to reject the application was based on incorrect facts”. 

20.	Those provisions are supported by the Flexible Working (Procedural Requirements) Regulations 2002 which, so far as is material for present purposes, prescribe, by Regulation 3, that there has to be a meeting to discuss the application, by Regulation 4, that after the meeting the employer has to notify his decision within 14 days to the employee and by Regulation 5, that the notice of the employer’s decision should be in writing and, where the decision is to refuse the application, it must state which of the grounds for refusal set out in Section 80G are considered by the employer to apply, should contain a sufficient explanation as to why those grounds apply in relation to the application and should set out the appeal procedure.  

21.	Finally, in this necessarily lengthy trip through a number of recent statutory provisions, both direct and indirect, there are the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002.  They set out that an employee is entitled to make an application to his employer for a contract variation, i.e. for flexible working, if he has been continuously employed for not less than 26 weeks and he is either the mother, father, adopter, guardian or foster parent of the relevant child or is married to or the partner of the child’s mother, father, adopter, guardian or foster parent and has or expects to have responsibility for the upbringing of the child.  There is no dispute in this case that Mrs Rutty was, pursuant to that paragraph of those Regulations, an eligible employee, but we mentioned these provisions lest it be thought that the flexible working provisions have a wider effect than they do in truth have.  

The Tribunal’s Conclusions
22.	The Tribunal were taken to the flexible working provisions in some detail, to Section 32 of the 2002 Act and, no doubt, to the Regulations which go with them.  They concluded, to put the matter briefly, firstly that Commotion were in breach of the flexible working provisions because, on the facts, the ground of refusal relied upon which was identified to us by Mr Dunn of Counsel on Commotion’s behalf as being that in Section 80G(1)(b)(vi) of the 1996 Act was not made out.  They said this at paragraph 11 of their Judgment:
“So far as breach of the Flexible Working Regulations are concerned, the Tribunal are not satisfied that the Respondents complied with requirements under section 80G of the 1996 Act.  Whilst they have put forward what the Tribunal would suggest are really outdated responses to requests for part-time working, they are off the cuff and made without research.  The Tribunal’s experience is, and no evidence has been brought before us in this case to show that working as a part-time warehouse assistant is not feasible, that with thought the workforce and the work required to be done can be organised so that there is no diminution in the service to customers, that the whole workforce can be organised to cope with that work with some people who have other commitments working on a part-time basis and others full-time.  There has not been a shred of evidence that proper enquiry and proper investigation was carried out by the Respondents when dealing with this request.  It must follow that our findings in this respect also go on to the question of justification in the indirect discrimination claim”.  

23.	That last sentence at paragraph 11 leads us on to the Tribunal’s finding on indirect discrimination which is at paragraph 12.  It was that that claim succeeded and, as we have indicated, there has been no appeal in respect of that.

Thirdly, at paragraph 13, the Tribunal found that the unfair dismissal claim succeeded.  They said this:  
“One of the reasons for the dismissal was the fact of the manner in which the Respondents had dealt with the Claimant’s request for flexibility.  She responded very shortly after the rejection of the appeal – within a few days.  It was clear that the two were linked.  She did not raise a grievance, it was submitted, but to require her to have raised a further grievance before bringing her claim to the Tribunal just beggars belief and it would be a nonsense.  Commonsense tells us that she had had enough .  She had gone through the procedure.  That had failed.  She gave cogent evidence to the Tribunal that it would have been a complete waste of time to put in any more grievances because the Respondents had clearly made up their minds and dismissed her request for flexible working, she has not put this, but we would suggest, almost out of hand without considering all of the matters they should have done.  So, for all those reasons, we find that the Respondents were in breach of the implied duty of trust and confidence entitling the Claimant to terminate her employment”.  

24.	We need not go on to deal with the Tribunal’s subsequent conclusions as to remedy.

The Grievance Issue

25.	Mr Dunn, on this issue, firstly submits that the Tribunal failed to recognise and to deal with the fact that, as Mrs Rutty had herself said, the real reason for Mrs Rutty’s leaving was not the handling by Commotion of her flexible working application but was a bad atmosphere at work.  He refers to the Originating Application in which, writing about her claim for unfair dismissal, and setting out her grounds for that claim, Mrs Rutty said:
“The resulting bad atmosphere between me and my manager and the warehouse made working there very uncomfortable and by 11 October, I felt I had no alternative other than to resign as all trust and confidence in the relationship had gone”.
Therein lies the real reason for her leaving, says Mr Dunn; and although this point is perhaps not in the Notice of Appeal, Mr Carr has not objected to its being taken.  It is said that Mrs Rutty repeated similar expressions in the course of her evidence, although we have not been taken to any evidence; and it is fair to comment, since this is, in part, a perversity appeal, as we will explain in a moment, that no notes of evidence have been put before us or, so far as we are aware, have been sought.  

26.	We find this submission of Mr Dunn unpersuasive.  What Mr Dunn has done is to take one sentence from the Originating Application whereas, in truth, the whole of what Mrs Rutty set out in that application about her unfair dismissal claim must be read together to see what her case was.  In that document she can be clearly seen to be saying that she was aggrieved at the initial failure of her employers to respond favourably to her informal request to go on a 3-day week.  She says, indeed, and this is a point to which we shall return later, that what she did on 28 August was to lodge a formal complaint under the grievance procedure and that she then appealed when her request was turned down.  She goes on to describe how Commotion’s failure to show any degree of flexibility put great strain on the working relationship between them and her but Commotion refused to change their position.  In our judgment, it was wholly clear that her case throughout was that Commotion’s refusal, properly to consider her request, as she saw it, created a situation in which the atmosphere was so bad that she felt that she had no alternative but to leave.  

27.	To separate the bad atmosphere from the reasons for the bad atmosphere is, in our judgment, wholly artificial and not a practical or pragmatic approach to any analysis of the issues which the Tribunal had to decide.  In a constructive dismissal case, where the employee is saying “my employers behaved to me so badly that their actions or inactions constituted a repudiatory breach of the implied term of trust and confidence”, it almost goes without saying that the employee, if asked during the course of her evidence, will be bound to say what the employers did created a bad atmosphere.  If it did not create a bad atmosphere, the employee might be in some difficulties in establishing that there was a constructive dismissal at all.  Thus, we reject this part of Mr Dunn’s submissions.  

28.	Mr Dunn’s next point is that the Tribunal did not find that Mrs Rutty had put forward a grievance to her employers before she issued her Originating Application to the Tribunal.  It is true, and Mr Carr on behalf of Mrs Rutty acknowledged this, that the Tribunal did not in terms say she presented a grievance.  But what they did say in paragraph 13 is that it had been submitted that she did not raise a grievance; and then, in the context of that submission, the Tribunal go on to say that it would have been a nonsense to have required her to have raised a further grievance; and later they say that it would have been a waste of time to have put in any more grievances.  In our judgment, In those words, read in their ordinary and natural meaning, the Tribunal can be seen to have been saying, in effect, that what Mrs Rutty had done was to put forward a grievance in her application for flexible working and that the Tribunal, did not see why anything more should be necessary.  The essential finding is present in paragraph 13 of the Tribunal’s judgment when read as a whole and read in context.  

29.	The next point is that if the Tribunal did so find, firstly they were wrong in law and secondly, such finding was perverse.  It is said that such finding was wrong in law for this reason.  Mr Dunn submits that the two sets of procedures, that is to say the procedure for making a flexible working application under Section 80F of the 1996 Act and the procedures by way of presentation of a grievance pursuant to Section 32 of the 2002 Act, together with their accompanying Regulations and procedural requirements are wholly separate and distinct, that Mrs Rutty was obliged by law to go through both procedures separately and that since what she did in August was to make an application for flexible working, she was required at law once that procedure had resulted in failure, then to present a further letter or document to the employers which represented her making a grievance, which she did not do.  

30.	We see no reason, in principle, why that should be so; we asked Mr Dunn what would be the position if an employee sent to her employers a letter in which she said “in this letter, I am both making an application under Section 80F of the 1996 Act for flexible working and, presenting to you a grievance about your refusal so far to accord me flexible working pursuant to Section 32 of the 2002 Act, “would not that document satisfy the requirements of both sets of procedures?”.  Mr Dunn, to do him justice, graciously accepted that such a letter could be regarded as instituting both sets of procedures on the part of the employee.  If that is so, it cannot be the case in law that there must be a separate document instituting each of the two sets of procedures.  If any doubt about that remained, it is resolved, in our judgment, by paragraph 2(2) of the Dispute Resolution Regulations, which we have already set out, and the effect of which, as we understand it, we have also already set out.  That sub-paragraph provides, in effect, that the document which contains or constitutes the presentation of a grievance can also fulfil another function about the same or about different subject matter.  It was Mr Carr who took us to that paragraph, to which – and we say this in no critical spirit – Mr Dunn had not drawn our attention.  Mr Dunn did not seek by way of reply to propose in respect of it a different meaning from that which we have attributed to it.  We reject Mr Dunn’s argument in this respect too. 

31.	We come next to perversity.  Mr Dunn accepts that whether a document does constitute the presentation of a grievance or not, is a question of fact; but he submits that the Tribunal erred in regarding the letter of 28 August as the presentation of a grievance because it was the presentation of an application under the flexible working provisions and Mrs Rutty had not, by that time, exhausted the procedures under those provisions and had nothing to be aggrieved about.  We have not been taken to any evidence which shows that that is what Mrs Rutty said to the Tribunal or that she said anything in the course of evidence inconsistent with what appears in her Originating Application.  We have already set out how, in that application, she described the document which she presented on 28 August in these words:
“I lodged a formal complaint under the grievance procedure”.
She plainly thought, at the time she filled out her Originating Application which she appears to have filled out in person, that whether what she was doing was also a presentation of an application for flexible working under the flexible working provisions, she was indicating to her employers that she had a grievance about the fact that they had not already granted her flexible working request or at least had not dealt with it in the manner which she regarded as appropriate.  Of course, what she said in her Originating Application is not determinative; but it is illustrative, particularly in the absence of any evidence or suggestion that she said the contrary in the course of her evidence.  She did have something which she could feel aggrieved at the stage which events had reached by 28 August because her informal request had been rejected.  The threshold for perversity is high, as is well known.  We do not propose in this judgment to deal with all the authorities as to the perversity test; we simply refer to what the Court of Appeal said in Yeboah v Crofton [2002] IRLR 634 (CA) with which those who appear here are wholly familiar.  That threshold is not cleared in this case.  We do not regard it as established at all that the Tribunal were not entitled on the facts to find that there was the presentation of a grievance by the presentation of that document to the employers on 28 August.  It was a permissible option for the Tribunal to reach that conclusion.  There was material on which they could reach it and, in the circumstances, it was not perverse of them to reach it.  

32.	There are two more points on this issue with which we should deal.  Mr Carr submitted in his Skeleton Argument and began in the course of his oral argument to submit that Section 32 of the Act, in any event, did not bite in this case because the events all happened or substantially happened before it came into effect.  The events certainly straddled 1 October 2004, which is the date on which the relevant provisions of Section 32 and Schedule 2 of the 2002 came into effect; for the formal procedure started on 28 August and ended on 6 October, when the notification of the result of the appeal was communicated to Mrs Rutty.  However, although there might in another case, if one got to the relevant stage, have been argument about whether the chronology meant that there were exceptional circumstances, Mr Carr’s point disappeared, as he in turn gracefully acknowledged, when his attention was drawn to the Commencement and Transitional Provision Order to which we have earlier referred.  The effect of the transitional provisions which we set out when we dealt with the law in this judgment is that the cut-off point is not the date on which any of the transactions, to use a neutral word, between an employer and employee occurred, but the date on which the complaint to the Employment Tribunal is presented.  The complaint to the Employment Tribunal was presented in this case after 1 October 2004; and thus the transitional provision have the effect that Section 32 did apply to this case, albeit Mrs Rutty may have been wholly unaware of that fact (whether she was or was not we do not know).  

33.	Finally, we return to Section 32 because we asked Counsel, if the submission of Mr Dunn that there was a failure to comply with the requirements of Section 32(2) and Schedule 2 was made good, what then would be the consequences?  Counsel agreed that the consequences were those set out in Section 32(6).  It was accepted by Mr Dunn that the Employment Tribunal could only be prevented from considering Mrs Rutty’s complaint presented in breach of subsection 2 of Section 32 if either of the two circumstances set out in subsection 6 applied.  He accepted that the first, set out subsection 6(e) did not apply because the breach was not apparent to the Tribunal from the information supplied to it by Mrs Rutty, she having said in her Originating Application that she had presented a grievance in time.  

34.	As to subsection 6(b) Mr Dunn and Mr Carr appeared, after some discussion with us and between themselves to be agreed that there were no regulations which had the effect of bringing this case within (b); and thus it would seem that Section 32 would not have prevented the Tribunal from considering this complaint even if there had been no grievance.  However, because we have decided that the Tribunal were entitled to find that there was a grievance and had not erred in law in coming to that conclusion, we prefer to say nothing further about 32(6)(b), which should be left to be grappled with on another day.  

35.	If subsection 32(b) does not apply, then the employer’s remedy or sanction for the failure of Mrs Rutty, if there had been a failure, to comply with Section 32 and Schedule 2, would have to be the reduction of compensation under Section 31.  However, it is accepted by Mr Dunn that that was not addressed to the Tribunal who were not asked to consider it and therefore it is not a point which he can take before us.  Thus, we say no more about it or about the grievance issue; and we turn to the flexible working issue.

The Flexible Working Issue
36.	It is accepted, as we have said, that Mrs Rutty was a qualifying employee and had made a valid application under Section 80F of the 1996 Act.  Mr Dunn’s submission is the Tribunal erred in law in seeking to find whether and in determining that the employers had not complied with Section 80G because there was no justification for the conclusion to which they came.  The point which we have generally described is sub-divided into what we might describe as four heads.  First of all it said that the Tribunal were not entitled to embark on any objective assessment of the assertion which the employer made, still less look to see whether it was objectively justified.  Secondly, it is said that the Tribunal failed to have regard to the reasons set out in the employers’ letters of rejection.  Thirdly, it is said that the Tribunal were directing themselves to consider not ground (vi) in Section 80G(1)(b), which was the ground on which Commotion relied, but ground (ii) upon which they were not relying.  Fourthly, it is said that the Tribunal’s conclusion was perverse.

37.	As to the first submission, we draw attention to the fact that the employee is entitled to present a complaint to an Employment Tribunal on the basis that the decision to reject his application for flexible working was based on incorrect facts sections see 80H(1)(b).  It must follow that the Tribunal is entitled to investigate the evidence to see whether the decision was based on incorrect facts.  There is, we would suggest, a sliding scale of the considerations which a Tribunal may be permitted to enter into in looking at such a refusal. The one end is the possibility that all that the employer has to do is to state his ground and there can be no investigation of the correctness or accuracy or truthfulness of that ground.  At the other end is perhaps a full enquiry looking to see whether the employer has acted fairly, reasonably, and sensibly in putting forward that ground.  Neither extreme is the position, in our judgment, which applies in the relevant statutory situation.  We accept Mr Dunn’s submission that the Tribunal is not entitled to look and see whether they regard the employer as acting fairly or reasonably when he puts forward his for rejection of the flexible working request. However,  we reject Mr Dunn’s submission that the Tribunal is not entitled to examine the facts objectively at all, for if they were not so entitled, the jurisdiction set out or the right to make an application set out by Section 80H(1)(b) would be of no use.  The true position, in our judgment, is that the Tribunal is entitled to look at the assertion made by the employer i.e. the ground which he asserts is the reason why he has not granted the application and to see whether it is factually correct.  In this case, it does not arise; but another case, it may be for instance that the bona fides of the assertion might have to be looked into.  

38.	In order for the Tribunal to establish whether or not the decision by the employer to reject the application was based on incorrect facts, the Tribunal must examine the evidence as to the circumstances surrounding the situation to which the application gave rise.  In doing so, the Tribunal are entitled to enquire into what would have been the effect of granting the application.  Could it have been coped with without disruption?  What did other staff feel about it?  Could they make up the time? and matters of that type.  We do not propose to go exhaustively through the matters at which a Tribunal might wish to look, but if the Tribunal were to look at such matters in order to test whether the assertion made by the employer was factually correct, that would not be any misuse of their powers and they would not be committing an error of law.  

39.	In our judgment, none of the four points made by Mr Dunn under this head is persuasive.  We have indicated what the Tribunal is entitled to do.  In paragraph 11 of their Judgment, they did not, in our view, stray outside what was permissible.  They pointed out that no evidence had been brought before them to show that working as a part-time warehouse assistant was not feasible.  They used their industrial experience to indicate their difficulty in accepting the correctness in fact of the employer’s assertion.  They pointed out that there was nothing to show that the work could not be done by proper organisation without diminution in the service to customers and that the employers had not carried out any enquiries or investigations to see whether what Mrs Rutty wanted could, in fact, be coped with.  Those were legitimate points which they were entitled to consider and on which they were entitled to base their findings.  They do refer to justification in the last sentence at paragraph 11; but there they were dealing with the indirect discrimination claim; and in our judgment, they did not, when considering the flexible working claim, stray from assessing the correctness of the employer’s assertion into considering whether it was a justified assertion.  

40.	As to the second point, the Tribunal in their judgment clearly referred to the essential part of the employer’s responses to Mrs Rutty’s application and her appeal and, in paragraph 11, sufficiently addressed the grounds which the employer had put forward.

41.	As to the third point, in the case of the warehouse where goods are picked out and packed to the order of customers, as in this case (this being a mail order warehouse) we can see no real difference to any sensible degree between an assertion that somebody working part-time will have a detrimental impact on performance and somebody working part-time would have a detrimental effect on the ability to meet customer demand.  If there was a detrimental impact on performance, that would constitute a detrimental effect on ability to meet customer demand.  The two appear to us to be mirror images of the same.  What the Tribunal were addressing was, in a practical sense, the true nature of the employer’s grounds for rejecting Mrs Rutty’s request.

42.	Lastly, we see no perversity.  The Tribunal set out the relevant letters, they dealt with the evidence; they reached a conclusion which was a permissible option.  We do not propose to say anything more about the well known perversity tests in this section of this judgment, any more than we did in the earlier section of our judgment.  We are quite satisfied that they came to a conclusion which it was open to them to reach and that they had material before them in which to reach that judgment on the facts.  They made findings of facts which were open to them; and we see no ground on which those findings of fact can be successfully attacked.

The Result
43.	We wish to say one thing more before parting from this case.  Mr Dunn has not put forward in this appeal any criticism of the Tribunal’s judgment on the basis that it does not comply with Rule 30(6) of the 2004 Tribunal Procedure Regulations. We do not for one moment forget or fail to appreciate the full impact of the difficulties which the Employment Tribunals have in dealing with their case load and in dealing with new points which come at them, sometimes very much out of the woodwork; but we would suggest that it would have been preferable and easier for everybody to deal with this case had the Tribunal in this case followed more strictly Rule 30(6) and, in particular, had set out the law and then the way in which they applied the law to the facts.  We are not suggesting that it is, in fact, necessary or compulsory to do that in every case or that should adherence to Rule 30(6) is mandatory; and we have found that the Tribunal’s findings in this case addressed the issues of law which arose and dealt with them appropriately.  We simply make the comment that, in this case, because of the complications and because the two areas were very new areas, it might have been more helpful to have set out the judgment in a more formal way.  We do not say by way of criticism, but in an endeavour to assist the Tribunal should a similar case arise hereafter.  

44.	For the reasons we have expressed, this appeal is dismissed.