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Navigating the Legal Implications of Declining Flexible Working Requests

Since making flexible working requests became a ‘day one right’ in April this year, clients have increasingly asked our Employment team about this.

A recent employment tribunal ruling said that saying ‘no’ to a request to work from home full-time, can be done… in some circumstances. This will be a source of comfort for many employers, as they seek to manage the growing tension between employees who want to continue to work from home, and employers who want to see people back in the office for at least some (if not all) of the time.

What was the impact of Covid-19 on flexible working requests?

Before 2020 only a few organisations were willing to countenance a hybrid working arrangement, but Covid-19 dramatically changed that landscape.

People are now used to the lifestyle benefits that working from home can bring and have tended to structure their lives on the assumption that the hybrid or home working pattern would remain.

A requirement to return to the office, especially for people who’ve moved further away from city centres, may be much more impractical and/or unattractive for a large proportion of the workforce.

Case study: Wilson v FCA

The recent employment tribunal decision of Wilson v FCA is one of the first cases to consider a flexible working request to work 100% remotely post-pandemic.

In this case, the Financial Conduct Authority (FCA) introduced a 60%:40% remote to office working requirement.

Ms Wilson made a flexible working request that she be allowed to continue to work entirely remotely as she had done throughout the pandemic. Her application was rejected by the FCA on the basis that it would have a detrimental impact on performance and quality of work.

The employer also argued that her being away from the office would mean she couldn’t provide face-to-face training or coaching to team members and new joiners. They further contended it would affect management strategy and in-person collaboration.

Crucially, in this scenario, Ms Wilson was a senior manager responsible for a number of junior employees.

Ms Wilson disagreed with the FCA’s rejection asserting instead that it was made on ‘incorrect facts’ – one of the grounds on which an employee can challenge the refusal of a flexible working request.

In particular she disputed that face-to-face working was better than connecting remotely and relied on her strong performance whilst working from home.

Tribunal findings

After hearing evidence from both sides, the employment tribunal rejected the claim that the FCA had based their decision on ‘incorrect facts’.

It accepted that Ms Wilson performed well remotely, but ultimately decided that the decision maker had genuinely considered the merits of the request; identified the issues; and given critical thought to the reasons for refusal, rather than just applying a blanket policy.

The employment tribunal was particularly impressed by the contemporaneous notes that were kept to back up the FCA’s response.

While her claim that the decision was made on ‘incorrect facts’ failed, Ms Wilson was successful in arguing that the FCA had breached the time limit for dealing with her request and was awarded one weeks’ pay in compensation.

Understanding time limits for flexible working decisions

While encouraging for employers who want staff in the office, this case doesn’t mean that companies can demand a full-scale return overnight. The judge was very clear that each case will need to be considered on its own merits.

This case raises a key issue in the modern workplace which will, no doubt, continue to be a real challenge for HR teams as well as a source of continued litigation.

The key takeaway is the imperative for individual decision makers to assess each flexible working request on its individual merits, taking into account the role and responsibilities of the individual, and keeping a record of their deliberations and ultimately the reasons underpinning the outcome.

Employers should also pay attention to the changes in the time limit to provide a final response to a request which was reduced from 3 months to 2 months in April.

Addressing indirect discrimination in flexible working requests

One final point to note is that Ms Wilson’s claim was confined to the Flexible Working Regulations. She didn’t raise any other issues such as an indirect discrimination claim, which we often see being brought alongside claims relating to flexible working requests.

If a request is made because of childcare commitments or because of issues connected to disability or religion, the test that the tribunal is required to apply is quite different.

How can Morr & Co help when responding to flexible working requests?

If you are responding to a flexible working request or planning to introduce a new policy that deals with hybrid or home working, we recommend that you speak to a member of our  Employment team, by emailing [email protected] or by calling 01737 854500.

Disclaimer

Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.


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