In the recent case of Wilson v Financial Conduct Authority an employment tribunal has considered an employer’s rejection of a flexible working request to work entirely from home. The employer’s policy is that employees should work in the office 40% of the time.
Flexible working requests – decision period
Currently, an employer must notify the employee of their decision, including the decision on any appeal, within three months from the date of the employee's request (or a longer period if the parties agree).
It is currently scheduled that from April 2024, this decision period will be reduced from three to two months.
The claimant, Miss Wilson, had been employed since 2005 as a senior manager at the Financial Conduct Authority (FCA). She had line management responsibilities for 14 members of staff. She started working from home shortly before the COVID-19 pandemic for health reasons. Following the end of the pandemic, the FCA created a new policy mandating that staff needed to be in the office 40% of their working time. In early 2023, Miss Wilson submitted a flexible working request to work entirely from home.
Her line manager initially rejected this request on the basis that approving the request could have a detrimental impact on her performance or quality of her output. Her appeal was also rejected. The process took longer than the prescribed three month period and there was no agreement to extend this period.
Miss Wilson commenced employment tribunal proceedings based on two grounds. The first was that the FCA had failed to deal with her request within the time limit. Secondly, she claimed that in reaching its decision, the FCA had relied on incorrect facts, namely that if she worked entirely from home, it would have a detrimental impact on quality and performance.
Where an employer fails to comply with the time limit for a flexible working request, the tribunal can award up to eight weeks’ pay. In this case, the tribunal felt that the breach was relatively minor and only awarded one week’s pay as compensation.
The tribunal then went on to consider the second issue as to whether the FCA had relied on incorrect facts when considering her request. The tribunal noted that Miss Wilson’s position within the FCA as a senior manager was important when considering the application. Specific requirements of her job role included meeting and welcoming new staff members, internal training where she was required to have a physical presence in the office and attendance at in-person events and weekly meetings with other senior managers. Even though she had performed very well at her job while working from home, it did not mean that some aspects of her role couldn’t be better performed in the office. The tribunal found that the FCA had genuinely considered the merits of the application. Miss Wilson’s claim on this ground therefore failed.
The tribunal noted that the office was a better environment for “fast paced interplay of exchanges which occur in, for example, planning meetings or training events when rapid discussion can occur”. It also acknowledged a limitation to the ability to “observe and respond to non-verbal communication” when remote working.
The tribunal acknowledges that this judgement centres around one of the “key issues in the modern workplace”. It also makes the point that this topic will no doubt be the subject of continued litigation in the future.
Although the reasoning of the tribunal is interesting in this case, the tribunal makes it clear that there is not only one solution which will work for all companies or even for all roles within a company. Each case will require its own consideration.