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Upcoming changes to the flexible working regime, combined with an increase in mandated office attendance, could result in employers seeing more requests to work remotely.
In light of this, the recent Employment Tribunal decision of Wilson v FCA may be welcomed by employers. It is one of the first cases to consider a flexible working request to work remotely post pandemic.
In this briefing we explore this decision and what employers can learn from it.
This case involved a claim under section 80H of the Employment Rights Act 1996 – so a claim for breach of the flexible working requirements.
Very broadly, the FCA implemented a 60%:40% remote to office working requirement. Miss Wilson made a flexible working request to work entirely remotely. This was rejected on the basis that, if granted, it would have a detrimental impact on her performance and quality of work.
In refusing the application, the FCA said:
“Approving this request could have a detrimental impact on performance or quality of output as you will not attend face to face training sessions, departmental away days/meetings, and you will not be able to provide face to face training or coaching to team members or new joiners. Your ability to input in Management strategy meetings and be involved in in-person collaboration will also be negatively impacted.”
The FCA also flagged Miss Wilson’s role as a Senior Manager (directly managing 4 employees and indirectly managing a further 10) and suggested that it would be better for junior members of her team if they were able to connect with her in person in the office.
Miss Wilson challenged this decision as having been made on “incorrect facts”.
She denied that face to face working was better than remote alternatives. She flagged her exceptional performance whilst working entirely remotely. She also highlighted the lack of physical meeting space and stated that the FCA had excellent technology.
She described how difficult it could be to engage privately in an office environment in contrast to the ease with which private meetings could be arranged on-line. She also pointed out that the flexible nature of the FCA’s policy (which allowed staff to choose when they might attend the office) meant that there was a very limited likelihood that she would meet the same staff members on a regular basis.
Miss Wilson also complained that she had not been notified of the final decision within the correct period.
An Employment Tribunal concluded that the decision had not been made on “incorrect facts”. Although Miss Wilson relied heavily on the (undisputed) point that she was performing well remotely, the Judge was persuaded by the fact that the decision maker had genuinely considered the merits of the request, identified the issues and given critical thought to the reasons for refusal, rather than just applying a blanket policy.
Whilst it concluded that the FCA had breached the time limit for the final decision, it only awarded 1 weeks’ pay in compensation. This was because the process was clearly under consideration and the final decision was notified shortly after the expiry of the statutory limit.
As more and more employers mandate a return to office working, this case provides some guidance as to how to deal with resulting requests to work from home.
This is particularly helpful given that we are likely to see an increase in flexible working requests once the upcoming changes to the flexible working regime come into play. See our recent briefing here for more information on this.
Employers should assess each flexible working application separately (considering the role, responsibilities, and circumstances), and should avoid adopting a blanket approach. Ideally, a clear flexible working policy will be in place with training for managers.
Employers should also consider whether alternative working arrangements might be possible. Whilst an alternative was not considered in this case, Miss Wilson had indicated during informal discussions that a ‘compromise’ solution would not be acceptable. Had that not been the case, the failure of the employer to consider alternative working (for instance, 10% or 20% office attendance) may have given rise to a breach.
Employers should also ensure that they consider requests in a timely manner, noting that from 6 April 2024 the time limit to provide a final response to a request (including completing an appeal) will reduce to 2 months.
In terms of relying on this case going forward, it is of course an Employment Tribunal decision and so it is not binding on other tribunals.
It is also important to note that Miss Wilson’s seniority was of particular relevance in the overall assessment. The same arguments as to quality and performance may not be so readily relied on in relation to a more junior employee, or one who has no supervisory role.
Additionally, this case didn’t raise any other legal issues, such as indirect discrimination. If a request is made because of childcare commitments, or disability or religious requirements, employers should be aware that additional legal considerations may apply.
Ultimately, flexible working cases will no doubt be the subject of continued litigation. As the Judge noted, there is of course a ‘qualitive debate’ as to whether face to face or virtual contact is better. This Judge seemed to agree with the FCA that some aspects of work are better done face to face. It is however open to another Judge to take a different view.
We will keep you updated as to any further case law in this area. In the meantime, this case at least gives some comfort that employers can refuse requests to work remotely – particularly from those in senior positions – provided they are handled correctly.
Contributor: Catherine Roylance
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at February 2024. Specific advice should be sought for specific cases. For more information see our.
08 February 2024