How should employers handle flexible working requests?

An employee whose flexible working request was refused by her employer has been unsuccessful in her Employment Tribunal claim against the decision, in which she alleged it was based on incorrect facts under s80H(1) of the Employment Rights Act 1996. The case of Wilson v Financial Conduct Authority illustrates that flexible working is ultimately a discretionary matter for employers, but that decisions should nevertheless take into account the circumstances of the employee’s circumstances if they are to be justifiable.

Following the easing of lockdown restrictions, the FCA reviewed their remote work policies so that 40% office attendance was the minimum requirement. The claimant, who works as a Senior Manager for the FCA, submitted a Flexible Working Application pursuant to s80F of the ERA, in which she requested to work remotely 100% of the time. The legislation allows employees to apply for a change to the terms and conditions of their employment, including the place where they are required to work. The employer is able to refuse an application on specified grounds, including detrimental impact on quality or performance.

The claimant’s line manager responded to the flexible working application, noting that she had performed well and built successful relationships during the pandemic despite working entirely remotely. She also noted that the FCA aims to be as flexible as possible in relation to working arrangements. Nevertheless, the claimant’s application was refused on the grounds of detrimental impact on performance, with various listed considerations including the fact that the claimant would not be able to attend in-person training or meetings or offer face-to-face coaching for junior employees, which was especially important as she was a manager. The claimant’s appeal was also rejected.

The key question in this case was whether the respondent had rejected the claimant’s flexible working application based on incorrect facts, i.e. the assertion that if she worked entirely from home it would have a detrimental impact on quality and performance. It should be noted that the claimant has no health condition for which working from home could be considered a reasonable adjustment.

The Tribunal found that the respondent had not rejected the application based on incorrect facts. The claimant’s line manager was right to identify weaknesses with remote working, notwithstanding the claimant’s excellent performance reviews while working from home. In particular, the judge emphasised that many find technology unsuited to fast-paced exchanges which can occur during in-person meetings, as well as the fact that there is a limited scope for observing and responding to nonverbal communication, which is an important part of working with others, especially in a managerial capacity. The claimant’s line manager did not seek to simply enforce a blanket attendance policy, but genuinely considered the individual merits of the application, and rightly identified areas for where in-person attendance could improve the claimant’s performance even if she was well reviewed by her colleagues.

As the judge noted, this case raises an important issue which is likely to be the subject of continued litigation. The need for in-person attendance is an ongoing debate, and it is likely that different employers will reach different decisions as to the best remote working policy. This case illustrates the legitimacy of employers requiring some level of in-person attendance, and rejecting applications for remote working where this genuinely could be detrimental to the business. Nevertheless, employers should ensure they approach each application on a case-by-case basis, and that, if rejecting such an application, they give sound reasoning for their decision. It is also important to check if any employee requesting flexible working arrangements is doing so on the grounds of a medical condition, as this may qualify as a reasonable adjustment should the employee’s condition meet the legal criteria for a disability, or have other discrimination implications involving protected characteristics such as pregnancy and maternity.