Dealing with remote working requests

In a recent decision, an employment tribunal has dismissed a claim based on the claimant’s request to have the right to work entirely from home.  

Miss Wilson v Financial Conduct Authority (ET 2302739/2023)

Facts of the case

Miss Wilson was a senior manager at the Financial Conduct Authority (FCA) and had been working full time at home since early 2020, as a result of the COVID-19 pandemic.

As the pandemic restrictions relaxed, the FCA settled upon a policy that senior staff were expected to be present in the office for 50% of their working time. Miss Wilson made a formal flexible working request to continue working from home full time, later clarifying that this was not related to health reasons but because she felt she was able to be more productive.

Miss Wilson’s line manager refused the application. Although her manager recognised that she had performed very well during the period she had been working from home, the letter setting out the FCA’s decision explained that “approving [the] request could have a detrimental impact on performance or quality of output”, as Miss Wilson would not be able to provide face-to-face training, or coach new members of the team. The letter further stated that Miss Wilson’s “ability to input in management strategy meetings and to be involved in in-person collaboration [would] also be negatively impacted”, especially as Miss Wilson had a vital leadership role within the department.

Miss Wilson appealed this decision, but her appeal was rejected.  

Miss Wilson lodged a tribunal claim for a breach of the statutory right to make a flexible working request, firstly, arguing that the FCA had failed to communicate the appeal outcome within the statutory time limit of three months and secondly, claiming that the FCA had rejected her application based on ‘incorrect facts’.

Employment tribunal’s decision

The tribunal upheld Miss Wilson’s claim that the statutory time limit had been breached and awarded a nominal compensation sum. The judge made it clear that flexible working requests should be dealt with efficiently, due to the stress outstanding requests can place on an employee, describing the time limits on flexible working applications as strict. Miss Wilson was awarded one week’s pay in compensation.  

Miss Wilson’s claim that the decision by the FCA to reject her request was based on ‘incorrect facts’, however, was not upheld. The judge appreciated that Miss Wilson could successfully complete a lot of her work from home, but agreed with the FCA’s arguments that allowing her to work from home full time would present difficulties for her and the FCA, particularly given her position as a senior manager. 

The judgment notes that “It is the experience of many who work using technology that it is not well suited to the fast-paced interplay of exchanges which occur in, for example, planning meetings or training events when rapid discussion can occur on topics.” It also notes that expectations around face-to-face training and coaching, among other activities, were “elements of the work of the Claimant which the Respondent legitimately expected her to complete.”

The Birketts view

As a first instance decision of the employment tribunal, this case does not set any precedent and does not give employers the right to reject flexible working requests out of hand, but it does highlight the fact that productivity should not be viewed as linear. The ability to be present and making a contribution to firm-wide initiatives and team development, rather than simply focusing on individual productivity, can also be a reason for requiring in-office attendance.

It is important to recognise that the circumstances and requirements for each organisation will differ, and that there is no ‘one size fits all’ approach for employers when it comes to requiring office presence. In dismissing the claim, the judge noted that “the need for staff to provide a physical presence at an office location is a debate that many companies are now engaged in and the solutions arrived at will no doubt differ considerably from employer to employer”. It is clear that the claimant’s seniority and the fact she had a number of direct reports was a significant contributing factor in the tribunal’s decision. Additionally, the claimant doesn’t appear to have care responsibilities or any health condition, which may have established a stronger case for the FCA to allow her remote working request.

Employers should note that changes to the existing statutory regime for flexible working applications will be introduced from 6 April 2024. The time limit for dealing with flexible working requests is reducing from three to two months, meaning that employers will need to ensure their managers consider such requests without delay.

Applications for flexible working are also set to increase, when the current requirement for employees to have a minimum of 26 weeks’ service to make such a request is removed in April. Employers should ensure that they meet with employees to discuss any flexible working arrangement and should fully explore all the reasons why an employee might be seeking remote working before reaching any decision, making sure they do so within the new two month time limit.