Flexible working continues to be high on the agenda and given the April 2024 changes to the flexible working request process, it appears that it will stay there for some time to come, so, we look at the case of Wilson v Financial Conduct Authority which shows that when any flexible working request is denied, the reasons for refusal will always be the crux of the case

The Facts

The claimant had been working entirely from home since early 2020 because of the Covid pandemic. After the respondent asked staff to return to the office two days a week, the claimant submitted a flexible working request asking to work remotely every day. In her request, the claimant stated that she was a high performer working this way.

In the organisation’s response, the claimant’s line manager acknowledged that she had performed well whilst working from home and had been effective at building relationships with colleagues despite not meeting in person. Nevertheless, the manager relied on the statutory reason of a detrimental impact on performance and quality of output to reject the request. This was because she would miss face-to-face training sessions, departmental away days, and meetings. She would also not be able to effectively coach new team members, and as a manager with a team of four her ability to input into managerial strategy and engage in collaboration with colleagues would also be negatively impacted.

The claimant appealed but this was also rejected, on the basis that it would be of “real” benefit to her and the team’s performance if they were able to connect face-to-face in the office.

The claimant brought claims alleging a breach of the flexible working process because it went over the statutory decision period, and that the outcome relied on incorrect facts.

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Employment Tribunal (ET)

The ET found that the process was concluded 21 days after the statutory decision period so awarded one week’s pay.

However, it rejected the claim that incorrect facts had been relied upon. The claimant’s manager, the ET said, had clearly considered the impact that remote working would have on the claimant’s ability to perform individual parts of her job. The ET agreed with the manager’s conclusion that the more senior elements of the claimant’s role, especially around people management, could not be as effectively performed remotely as face-to-face.

The ET also said that technology is not well suited to fast-paced interplay that comes from face-to-face meetings or training, and that it was reasonable for her to be expected to attend work in person. Moreover, the manager was not incorrect in identifying the potential risks to the claimant’s performance and that the respondent’s expectations around various activities including face-to-face training and coaching were legitimately part of the respondent’s expectations for the claimant and her work.

Takeaway points

Many organisations that continued to allow homeworking after lockdown ended are now seeking to get their staff back into the office. Where employees are resisting calls to return to the office, employers should be careful to break down the individual’s role and examine each area as part of the overall assessment as to whether remote working should be permitted.

What this case does not mean is that employers can simply rely on the statutory reasons for refusal without providing support as to why they apply. The manager in this case took care to take a balanced look at what parts of the employee’s role could and could not work remotely. It is clear from the judgment that this examination led the ET to hold as it did, although it is important to note that as it is an employment tribunal case, it is not binding authority.

It may be that going through the process of looking at the employee’s role in detail reveals opportunities for alternatives to the employee’s request where that request cannot be accepted. It may show that hybrid working, or other duties may better suit what the employee wants from their work.