Claimant v National Highways Limited

The tribunal found that the respondent did not apply the PCP requiring full-time six-on-three-off shift work to the claimant after October 2021, as he was offered part-time working from that date. The PCP was only re-applied from June 2022. More critically, the tribunal found the claimant failed to establish he was put at any substantial disadvantage by the PCP. The contemporaneous medical evidence, including the November 2021 Occupational Health report, showed the claimant was fit for full-time operational duties. The claimant never raised fatigue or atrial fibrillation as a reason preventing him from working full-time in any of his medical consultations or in his original flexible working request. The tribunal concluded the respondent could not reasonably have had knowledge of any substantial disadvantage until late May/early June 2022, at which point the respondent immediately referred the claimant to Occupational Health — a reasonable step.

The tribunal found the respondent did not fail to allow the claimant to continue part-time working, because on 14 June 2022 (the day after his resignation) the respondent offered to reinstate the four-on-five-off pattern with immediate effect. The claimant did not respond to this offer. The tribunal further found that ending the six-month trial of flexible working (on notice from 11 May 2022 to end-June 2022) did not constitute a fundamental breach of the implied term of trust and confidence. The claimant knew from October 2021 that the arrangement was a trial. The decision to end it was driven by significant staffing shortages at Toddington outstation, was communicated with ample notice, and the respondent offered to reinstate the arrangement when staffing allowed. The tribunal also found the claimant resigned for multiple reasons (including disputes over annual leave and work trousers) not solely the working pattern issue. Even if there had been a breach, the claimant affirmed the contract by continuing to work and engage with the respondent on other matters for over a month after being notified on 11 May.