Employer was entitled to reject employee’s request to work remotely 100% of the time

Employment Tribunal decision provides interesting insight on the flexible working mechanisms in the Employment Rights Act 1996.

Flexible working has become an increasingly prominent part of the work landscape in the UK over the last 20 years. The right to flexible working was first introduced for working parents in 2003 before it was expanded to all employees with 26 weeks’ service in 2014.

There had been talk for several years prior to the Covid-19 pandemic that flexible working would be made a ‘day one right’ to make it the ‘default’ position for all employees.

The pandemic accelerated and broadened the use of home working across most sectors and since then, gradually, employers and employees have been feeling their way back to a more balanced arrangement with many employees now working a mixed week between home and the office. 

As we have reported in our article Changes to key employment laws in April 2024 – what employers need to know, the flexible working regime has as of 6 April been further updated. It is now a ‘day one’ right that provides more opportunities for employees to bring a flexible working request, demands a quicker response from employers, and requires employers to consult with employees and consider alternative approaches before refusing a request.

It seems likely that employers will have to deal with more flexible working requests and will need to engage more meaningfully with such requests as a result of these changes.

Readers should note that much of the legislative scheme remains in place following these changes. Employees can still bring claims in relation to flexible working requests, including that their employer has failed to deal with the request in a reasonable manner, failed to notify them of the decision within the decision period, failed to rely on one of the statutory business reasons for refusing a request, or based its decision on incorrect facts. The maximum remedy for such claims is eight weeks’ pay (subject to the statutory cap on a week’s pay).

An interesting case arising out of the flexible working rules (before they were updated) provides some useful insight into the factors employers should bear in mind when considering these requests, particularly where they involve working from home.

Case: Wilson v Financial Conduct Authority [2023]

Miss Wilson joined the FCA in 2005 as a senior manager. In early 2020 Miss Wilson and the FCA agreed that she could work from home due to ‘health reasons’ connected to the developing Covid-19 pandemic.

Like all employers, the FCA adjusted the working arrangements of staff to meet various lockdown protocols and requirements. Following the easing of restrictions, the FCA reviewed working practices and settled on a policy that staff should attend office locations for 40% of their working time, with 60% of hours to be worked remotely.

After this pattern was established, Miss Wilson submitted a flexible working request in line with s.80F Employment Rights Act 1996 (ERA 1996). She requested to work from home 100% of the time. The FCA ultimately refused the request on the basis that doing so ‘ could have a detrimental impact on performance or quality of output, as you will not attend 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 refusal letter also highlighted that as a senior manager, Miss Wilson was in a vital leadership role and that junior members of the team not being able to meet her would have a negative impact on the department.

Miss Wilson appealed the decision, in part on the basis that she had successfully performed her role working from home since early 2020 and that there was insufficient evidence for the assertion that working from home ‘could’ have the impact on performance, output and her contribution to the department as set out in the decision letter.

Miss Wilson brought a tribunal claim under s.80H ERA 1996 claiming that the FCA had not provided its decision in time and that the rejection of the flexible working request was based on incorrect facts, namely that the FCA asserted that if Miss Wilson worked entirely from home, it would have a detrimental impact on quality and performance.

Tribunal decision

The Tribunal did not uphold the claim that the decision was based on incorrect facts. Whilst the Tribunal accepted that Miss Wilson had an exemplary record while working from home, and that many of aspects of her management role could be completed successfully while working remotely, the Tribunal found that the FCA had appropriately considered the request, carefully analysing the relevant factors.

The Tribunal accepted the FCA’s view that Miss Wilson’s absence would impact on her ability to meet and welcome new staff members, engage in training and attend in-person events and conferences and that such issues were heightened by the fact of her role as a senior manager. The Tribunal determined that the FCA was entitled to conclude that the 100% remote arrangement meant Miss Wilson’s role was not working in the way the FCA wished it to work and to deny the request.

It was noted in this case that Miss Wilson did not explain the reason why she wanted to work from home 100% of the time, though it was confirmed that at the time the request was being considered it was made clear it was not due to medical needs. Likewise, when the FCA enquired about whether Miss Wilson would accept a reduced requirement to come to the office, this was rejected outright without any specific reasons being given.

Comment

Whilst the flexible working regime is now different in some key respects, the grounds on which the FCA ultimately refused the claimant’s request – detrimental impacts on quality and performance – remain in the updated regime.

The judgment includes an interesting commentary on whether employers are able to insist that employees attend the workplace, given the significant technological changes which allow remote work and interaction with colleagues. In this case the FCA had in effect trialled the claimant working completely remotely for almost two years and had significant evidence and experience to call upon in making its decision. Importantly, the employer had applied its mind seriously to the impact of a purely remote manager on the team and it was this careful analysis which led the Tribunal to accept the FCA’s decision was not based on incorrect facts.

This claim did not involve claims for indirect discrimination or a failure to make reasonable adjustments for a disabled employee which are often brought alongside flexible working claims. Employers should be aware of these additional considerations and legal risks when handling flexible working requests and seek legal advice at an early stage. 

Ultimately, employers and employees will continue to need to deal with flexible working requests on the merits of the specific case against the backdrop of the employer’s business needs and policy.