Background

Miss Wilson, a Senior Manager at the Financial Conduct Authority (FCA), submitted a flexible working application in December 2022. Miss Wilson had already been working remotely since the start of the pandemic in early 2020 but following the FCA’s implementation of a policy which required staff to split working time 60%/40% remote/office, she requested a formal change in her employment terms to enable her to work entirely remotely.

The application was initially overlooked due to confusion about who was responsible for processing it. The decision was then delivered to Miss Wilson in March 2023, 21 days after the statutory decision period had expired. The FCA rejected the request on the basis that working from home entirely may have a detrimental impact on her performance and quality of work.

The tribunal’s findings

The tribunal found that the FCA had breached the statutory decision period time limit and ordered it to pay Miss Wilson one week’s pay as compensation. While the maximum compensation for such a breach can be up to eight weeks’ pay, one week’s pay was deemed appropriate here as the delay wasn’t excessive.

The second question was whether the FCA’s assertion – that, if Miss Wilson worked entirely from home, it would have a detrimental impact on quality and performance – was based on ‘incorrect facts’.

Remote working and performance: A central issue

The FCA highlighted the importance of face-to-face interactions for training, supervision, department needs, and fostering a team spirit – particularly given Miss Wilson’s seniority and the fact that she managed a number of people.

On the other hand, Miss Wilson referenced the fact that she had been performing exceptionally well during the period where she had been working entirely remotely. She pointed out that the company had excellent technology that enabled remote working and asserted that many of the suggested disadvantages were not real. She also noted that the flexible nature of the company’s policy, which allowed staff to choose when they might attend the office, meant that there was a limited likelihood of her actually meeting the same staff members on a regular basis.

The tribunal ultimately held that the FCA’s decision was based on correct facts. The judge had particular regard to the fact that the decision maker had genuinely considered the merits of the application and set out specific reasons why it may have a detrimental impact, while balancing those factors against the Claimant’s ‘excellent’ performance record while working remotely.

The FCA’s decision maker was therefore praised for the detailed consideration and qualitative assessment that had been undertaken – rather than simply seeking to enforce the FCA’s attendance policy.

The future of remote working: Our comment

On the face of it, this might appear like a decision which rubber stamps a mandatory ‘return to the office’ policy for employers who wish to compel in-person attendance.

However, there are some important points to consider here. Firstly, this was a decision about a very specific point of law – namely, whether the reason provided by the FCA for refusing a flexible working request was based on ‘incorrect facts’. It wasn’t a decision on other legal issues, for example, the question of whether a policy requiring office attendance might be indirectly discriminatory, or whether a dismissal following a refusal to return to work in the office was fair.

Secondly, every case of this nature will turn on its specific facts – Judge Richter, reinforcing that point, stated, “there will not be one solution which will work for all companies or even for all roles within a company“.

Flexible working will no doubt continue to be a hot topic in the future – particularly as employees will have the statutory right to request flexible working arrangements from day 1 of their employment from 6 April 2024.

Given the often-polarised views in relation to this issue and the huge impact it has on both individual and collective working practices, we are likely to see more and more litigation in this area. When faced with flexible working requests, employers should properly consult with the employee about the request – which means being genuinely open to considering their position – including exploring alternative options if the original request isn’t workable.

Where there is a legitimate reason to turn down a request, it should be fully articulated. A blanket approach of reinforcing a company policy, and therefore deciding based on a concern to not set a precedent of departing from that policy, won’t be enough here.

Instead, consideration should be given to individual circumstances, particularly in relation childcare responsibilities and employees who may have a disability or caring responsibilities.

A balanced approach and carefully thought-out response (while still complying with statutory time limits!) is key.

Flexible working requests: How we can support you

Navigating the complexities of flexible working applications can be challenging, especially in the context of remote working. Our Employment team at Walker Morris is here to help. Whether you need guidance on processing applications, implementing remote working policies, or handling appeals, refusals or grievances relating to flexible working practices, we can provide the support you need.

Contact Charlotte Smith to find out more about how we can help you navigate the changing world of work.