Flexible working requests and remote working

With changes to the flexible working regime on the horizon for 2024, the newly reported case of Wilson v the Financial Conduct Authority is a timely reminder of the complexities of dealing with flexible working requests.

The case highlights that, whilst it is important to ensure that requests are dealt with expeditiously and on the specific facts and circumstances of each situation, an employer can refuse requests (in this case to work entirely remotely), provided that there are justifiable business reasons for doing so.

The facts

In December 2022, Miss Wilson, a senior manager employed by the Financial Conduct Authority (the FCA), made a flexible working request seeking a change to her terms of employment to enable her to work entirely from home. She had line management responsibility for four employees and indirectly managed an additional 10.

Her request was rejected. In reaching this decision, the FCA recognised that Miss Wilson performed well from home. However, the request was rejected due to the potential negative impact on her team if she were to work from home exclusively. The decision letter stated that exclusive remote working could have a detrimental impact on, amongst other factors, collaboration opportunities, supervision of staff and her ability to build relationships with new colleagues.

The Claimant appealed. She referred to the fact that she had worked entirely from home successfully since the outset of the Covid-19 pandemic and during this time her performance reviews had been consistently positive. The appeal was rejected. In the decision letter dated 29 March 2023, the FCA noted that the impact on the wider team required to be taken into consideration and Miss Wilson’s performance and output could not only be ‘viewed through the very linear lens of (her) own perspective’.

Miss Wilson commenced employment tribunal (ET) proceedings, claiming that (i) the FCA had failed to deal with her request in a timely manner; and (ii) in reaching the decision to reject the request, they had relied on incorrect facts. Miss Wilson stated that the FCA was, in both cases, in breach of Section 80G of the Employment Rights Act 1996 (ERA).

The ET decision

Under the current ERA provisions (and those in force at the relevant time), a flexible working request must be considered, and a decision communicated to the employee within three months of the date on which the request was made. If the employee appeals against an original decision, the appeal must also be dealt with within the same three-month window. (Note – the decision period is set to reduce from three months to two months later this year, envisaged to be from 6 April 2024).

In Miss Wilson’s case, the FCA issued the decision letter 21 days after the three-month decision period had ended. The Tribunal found that there was a clear breach of the rules in this regard and reiterated that the time limit set out in the ERA in this regard should be applied strictly. Whilst an award of compensation of up to eight weeks’ pay could be awarded for breaches of this nature, given the wider circumstances and the relatively short delay, an award of one week’s compensation was awarded to Miss Wilson by the ET.

In relation to the refusal of the request, Miss Wilson relied on her previous good performance and appraisals and pointed to the benefits which working remotely could bring (for example, making it easier to hold private conversations with her team). She disputed that face-to-face working was better particularly as the FCA had excellent technology in place and believed that the FCA had ‘overstated the disadvantages’ of remote working. She said that in deciding to reject the request the FCA had relied on ‘incorrect facts’ – those being that working remotely could have a detrimental impact on quality and performance.

The ET dismissed the claim and found that there was no evidence that the FCA had rejected the request based on the ‘incorrect facts’ as asserted by Miss Wilson. The ET found the claimant’s line manager had carefully weighed up the advantages and disadvantages of remote working and had not relied on incorrect facts, but rather had applied critical thought to the wider circumstances and was right to identify weaknesses with remote working. In particular, reliance was placed on Miss Wilson’s inability to carry out a number of duties in the manner expected by the FCA including meeting and integrating new staff members, providing internal training and being available to her team for ad-hoc advice and support in person.

It was also considered relevant that as part of her senior role, she was required to enforce the Respondent’s policy requiring office attendance 40% of the time, and this would be undermined if she worked fully remotely. All of these factors could reasonably be considered to result in a potential detriment to the quality and performance of the claimant’s work, notwithstanding her previously good performance whilst working remotely.

Implications for employers

Although this case was heard at ET level and so not binding (and may still be subject to appeal) it serves as a reminder of the importance of dealing with flexible working requests in a timely but thorough manner.

The ET stressed that when considering flexible working requests employers should avoid taking a blanket approach and that ultimately each situation would require consideration on its own merits taking into account the individual role and responsibilities as well as the needs of the business which will differ in each case. Depending on the specific facts, a failure to handle a flexible working request correctly could also result in claims of constructive unfair dismissal and discrimination. In particular, disability and sex discrimination claims are often raised alongside the breach of the flexible working legislation.

The ET noted that the remote vs office-based debate will no doubt be the subject of continued litigation and with the upcoming changes to the flexible working regime from April it could be that employers see a rise in requests of this nature. It is important that employers are abreast of the changes coming into effect in April 2024 to ensure compliance with future requests. Acas has updated its Code of Practice on Flexible Working ahead of these changes coming into effect and this can be accessed in draft form here. We will issue further updates on this matter in due course.