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Recent Employment Tribunal decision – Flexible Working Requests

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Miss Wilson v Financial Conduct Authority 2302739/2023

A recent Employment Tribunal decision has found in favour of an employer who refused a flexible working request from a Senior Manager to work on a fully remote basis, following implementation of a 60:40 remote vs office working policy. Although this is a first instance decision which would not bind future tribunals/courts, it gives an interesting insight into what Judges will consider in cases brought by employees following refusal of flexible working requests.

Miss Wilson (employed by the FCA since 2005) submitted the request in December 2020 following working remotely since early 2020 due to the Covid-19 pandemic. Miss Wilson’s employment contract stated her usual place of work to be at a physical office location, rather than her home. However, following easing of the pandemic restrictions the FCA had settled on a policy that staff should split their working time between office and home working, with 60% of their hours to be worked remotely.

Following Miss Wilson’s request to work on a fully remote basis on 9 December 2022, she met with her line manager who was responsible for dealing with the application on 28 February 2023 and a decision was provided via letter on 2 March 2023. Whilst the letter noted that Miss Wilson had performed well from home and built effective relationships with colleagues on a remote basis, it refused the application, stating that approving the request could have a detrimental impact on performance / quality of output as Miss Wilson would not attend face to face training sessions, departmental away days/meetings and she would not be able to provide face to face training/coaching to team members or new joiners. It also highlighted that her ability to input into Management strategy meetings and be involved in in-person collaboration would be negatively impacted. It was noted that Miss Wilson was a Senior Manager and there was an expectation that junior colleagues would have the ability to meet with senior managers in person from time to time.

Miss Wilson appealed the decision to refuse the request on 9 March 2023, however the original decision of the FCA was upheld in an outcome letter dated 29 March 2023.

Section 80H(1) of the Employment Rights Act 1996 (as amended) (“the Act”) provides that an employee may present a complaint to an Employment Tribunal if they feel that (a) their employer has failed to comply with section 80G(1), which sets out an employer’s duties in dealing with a flexible working application (e.g. dealing with it in a reasonable manner, notifying the decision within the decision period, only refusing on the basis of certain statutory grounds etc.), or (b) that the decision by the employer to reject the application was based on incorrect facts. In this case, Ms Wilson brought a claim based on the latter and alleged that the assertion that working entirely from home would have a detrimental impact on quality and performance (as asserted by the FCA in the decision outcome letter) was incorrect. She also alleged the appeal decision had not been provided to her within the statutory time limits.

The Tribunal considered the allegation that the FCA had based their decision to reject Miss Wilson’s request on incorrect facts, in particular focussing on the evidence given by the decision maker, Miss Wilson’s line manager. From the line manager’s witness statement it was clear that Ms Wilson’s strong performance and tasks which could be adequately completed remotely had been considered, however there were various activities noted that the line manager considered would not be as effective if carried out remotely rather than in person – for example, internal training and supervision as a line manager, meeting and welcoming new staff members, attendance at weekly senior management meetings and attendance at a ‘Department Day’ team building event. It was also noted that Miss Wilson, as a Senior Manager, was required to enforce the FCA’s policies and procedure, including the 40% attendance policy and that it would be difficult for her to do this if she was not also subject to the same requirement.

In cross-examination, the line manager noted that although the FCA has employees across the country, there was an expectation that at times all staff would co-locate and it is more important for a manager to have an office presence so that they can intervene and provide support when they see a member of staff struggling. The line manager maintained that she had not overstated the detrimental factors in her decision or been excessively influenced by “policy and generalisations”.

The representative for the FCA in closing submissions commented that whilst Miss Wilson’s performance working remotely had been good, it was during the pandemic period and had never been during a period where it was “business as usual”. It was stated that the FCA had advanced clear reasons for the refusal of the request and that these were not based on incorrect facts.

In reaching its decision to dismiss Miss Wilson’s claim, the Tribunal pointed to the fact that Miss Wilson had managerial responsibilities and an overall senior position within FCA and that such a position does feed into the test of the performance and quality to be expected from their work. It was stated that the factors identified by the line manager as potentially leading to a detriment to the quality and performance of Miss Wilson’s work were not incorrect and that a number of tasks simply could not be achieved in the same way through remote working. It distinguished this case from previous cases by pointing to evidence that the line manager had clearly given critical thought to and careful analysis of the asserted reasons for refusal. There was not seen to be any ‘blanket restriction’ on flexible working by the FCA.

The Tribunal did uphold that the FCA had not communicated its appeal outcome decision to the employee within the statutory time limits, however the employee was only awarded one week’s pay as compensation as the delay was minimal and it was clear the process was under consideration by the FCA.

This case does not provide a basis for employers to reject flexible working requests without good reason or proper consideration, particularly in relation to requests for home working. In setting out its conclusions, the Tribunal noted that the need for staff to provide a physical presence at an office location is a debate which many companies are currently engaged in and which the solutions arrived at will differ considerably from employer to employer, with there not being one solution which will work for all companies and roles. It commented that it is likely to be the case that each situation requires its own consideration.

Employers must consider each of the grounds for refusal of a request set out in section 80G(b) of the Act (e.g. the burden of additional costs, detrimental effect on ability to meet customer demand, detrimental impact on quality / performance etc.) and ensure any reasons for refusal under one of these grounds is justified and that evidence to support this fact is properly documented. The judgment reiterates that there is no “right” for a flexible working request to be granted, however there is a right that an employer considers such a request in accordance with the statutory scheme.

Employers should note that there are upcoming changes to the flexible working regime, due to come into effect on 6 April 2024 under the Flexible Working (Amendment) Regulations 2023. The changes include an increase in the number of flexible working requests which can be made in any 12-month period (up from one to two), and a reduction in the amount of time employers have to respond to any requests (down from three months to two). If you require any assistance in bringing or responding to flexible working requests, our dedicated Employment Team can provide assistance and support.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.
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