After the pandemic, many employers have become more open to flexible and remote working arrangements. But how much can, or should, employers allow employees to work only from home, and on what grounds can those requests be denied? The Employment Tribunal recently considered these issues in Miss Wilson v Financial Conduct Authority, where the employer rejected a senior employee's request to work from home full-time.
The statutory framework for requesting flexible working
Employees have a right to request flexible working. This can be a change to the hours they work, to the times they are required to work and/or to their place of work.
Flexible working requests must be made in writing. Employers must consider those requests in a reasonable manner and can refuse them for one or more of eight business reasons. These include: the inability to reorganise work among other staff; the inability to recruit additional staff; the burden of additional costs; a detrimental impact on quality and/or performance; and a detrimental effect on ability to meet customer demand.
Employees can bring an Employment Tribunal claim where their employer did not handle the request in a reasonable manner; did not respond within the requisite timeframe; did not rely on one of the statutory reasons when refusing; wrongly treated the request as withdrawn; and/or rejected the request based on incorrect facts.
As mentioned in a previous article, the Government is making various changes to the right to request flexible working regime from 6 April 2024. Employees will be entitled to request flexible working from their first day in employment, rather than after 26 weeks' service. They will also be able to make two requests rather than just one in a 12-month period. In addition, employers will have to respond to requests (including any appeal) within two months, rather than three months under the current regime, although this timeframe can be extended by agreement.
What happened in this case
Miss Wilson had worked remotely since the onset of the Covid-19 pandemic in early 2020. In December 2022, she made a flexible working request to work from home permanently going forward, and to never attend a physical office location.
Her employer (the FCA) rejected Miss Wilson's request, saying that granting the request would have a detrimental impact on the quality and performance of her work. Whilst acknowledging that Miss Wilson had performed her role very well remotely, the FCA gave a number of reasons, including that:
- Miss Wilson would not attend face-to-face training sessions, departmental away days and meetings;
- her ability to input in management strategy meetings and to be involved with in-person collaboration would be negatively impacted; and
- given her Senior Manager position and line management responsibilities, there was a reasonable expectation that junior colleagues should be able to meet Miss Wilson in person from time to time. This would not be possible under the requested arrangement.
The FCA rejected Miss Wilson's appeal of their decision, reiterating that, despite her strong performance, it would still be better and of real benefit if her team were able to connect with her in person.
At the time of Miss Wilson's request, the FCA had a policy in place that staff should spend at least 40% of their working time in the office. The FCA also said that this would be difficult to enforce in circumstances where one of its senior employees was not herself following that policy.
Employer took too long to go through the whole flexible working request process
Miss Wilson brought an Employment Tribunal claim arguing that the FCA had taken 21 days longer than the statutory 3 month period to go through the entire flexible working request process.
She was awarded compensation of one week's pay for the FCA's failure to deal with the appeal within the statutory 3 month period.
But the employer had considered in detail the merits of the flexible working request
Miss Wilson also claimed that the FCA's rejection of her request was based on incorrect facts. However, the Tribunal rejected this.
Miss Wilson argued that the detriments highlighted by the FCA (including the benefits of face-to-face interactions) had been significantly overstated and were not supported by evidence, and that the FCA's technological capabilities invalidated many of the disadvantages it had cited. She also challenged the perceived detrimental impact on her ability to effectively perform her role at home, pointing to her strong work performance.
However, the Tribunal concluded that the FCA was entitled to identify weaknesses with remote working. Remote working limited the ability for individuals to observe and respond to non-verbal communication, which the FCA said forms an important part of working with others.
The Tribunal also found that remote working using technology is not well-suited to the fast-paced interplay of exchanges which can occur in meetings or in training events. Miss Wilson's senior position and managerial responsibilities were particularly relevant here and it was a valid consideration when judging potential impact on performance and quality, as she could not deliver these as envisaged by the FCA if she were to work from home permanently.
As the FCA had given detailed consideration to Miss Wilson's request and to the issues it had identified, it had not based its decision upon incorrect facts.
What this means for employers
Remote working in the modern workplace will likely form the subject of further litigation. However, there have been surprisingly few cases on it in a post-Covid-19 environment, which makes this a notable Tribunal decision.
This case highlights that some physical attendance at work can have advantages over exclusive remote working. What is clear, however, is that this is fact-sensitive and there is no 'one size fits all' approach for all employers or for all roles within an employer: each situation will require its own consideration.
It is worth noting that Miss Wilson did not give any reason for her request to permanently work from home. Had she done so, and that reason had involved, for example, caring responsibilities or health-related matters - which can raise potential discrimination issues - the relevant considerations and outcome may have been different.
More generally, different employers, and even different parts of a business within an employer, may place different value on the importance of face-to-face interactions.
This case also highlights the importance of striking the right balance between offering flexible working arrangements (which can help attract and retain the best talent) and meeting business needs. Having a clear, tailored policy in place and making sure that this is kept under review will be a key step in helping to resolve potential conflicts.
If you would like more information or support on flexible working, please get in touch with your usual Mishcon contact or with a member of the  Employment team.