Member Article

Flexible working has continued in many workforces since the pandemic. The most common pattern is a hybrid one where employees split their time between the office and home. However some employees are now looking to work remotely on a permanent basis.

This is what happened in Wilson v Financial Conduct Authority 2302739/2023. The Claimant submitted a flexible working application requesting to work entirely remotely using her computer and other electronic equipment and to complete all her work without attending a physical office location. The Respondent’s policy was that post-pandemic, the Claimant was expected to work in the office 40% of the time and could work the other 60% remotely. 

Facts

The Respondent refused to accept the Claimant’s flexible working application on the basis that it could have a “detrimental impact on performance or quality of output” as the Claimant would not be able to “attend face to face training sessions, departmental away days / meetings and she would not be able to provide face to face training or coaching to team members or new joiners”. The Respondent further said that they were concerned that her “ability to input in management strategy meetings and be involved in in-person collaboration will also be negatively impacted”. The Respondent further said that because the Claimant was a senior manager and played a “vital leadership role for the department”, it was a reasonable expectation that junior colleagues would be able to meet with her in person. The Respondent concluded by stating that were it to agree to the Claimant’s request, it would have a negative impact on the Claimant’s department. 

Despite rejecting the request on the above grounds, the Respondent did note in the response letter that it aims to be as flexible as possible and considers individual circumstances alongside business need. The Respondent also said that it recognised that the Claimant had performed really well working from home since the pandemic and had built effective relationships with her peers despite not meeting them in person. 

The Claimant appealed against the refusal on the grounds that there was evidence to show that her working permanently from home would not have a negative impact on other performance, output or her contribution and referenced awards and positive feedback she had received while working remotely. Her appeal was rejected on the basis that it was reasonable for the Respondent to conclude it would be better and of real benefit to the Claimant and her team if she worked from the office for part of the week. 

The Claimant brought a claim in the Employment Tribunal against the Respondent. One of the key issues for the Tribunal to decide was whether the Respondent rejected the Claimant’s application for flexible working based on incorrect facts, namely an assertion that if the Claimant worked from home on a permanent basis, it would have a detrimental effect on quality and performance. 

Decision

The Tribunal carefully considered the evidence given by the Claimant’s line manager, who had also decided the original outcome to her flexible working request. The Tribunal found her to be a credible witness and the noted that it found that she did genuinely consider the individual merits of the Claimant’s request as opposed to just reinforcing the Respondent’s hybrid working policy. 

The Tribunal further found that the Claimant’s job role, as a senior manager, provided an important context when considering whether or not to accept the flexible working request. The Tribunal found the Claimant did have managerial responsibilities and a senior position leading her department within the Respondent. The Claimant’s line manager provided various reasons why there would be a detriment if the Claimant performed her role entirely remotely which included her inability to attend meetings run at the office, meet with and welcome new employees and attend leadership meetings to discuss key topics. 

Interestingly, the Tribunal agreed that the above activities could be completed effectively when carried out virtually but went on to say that  the Claimant’s line manager was correct in her approach to question the impact of the Claimant working permanently from home. The Tribunal noted that technology cannot always keep up with fast paced discussions especially when planning meetings are taking place. The Tribunal also said remote working doesn’t always allow individuals to observe or respond to “non-verbal communication which may arise outside of the context of formal events but which nonetheless forms an important part of working with other individuals”. 

The Tribunal held that on the evidence, it was satisfied that the Respondent was entitled to reject the Claimant’s flexible working request on the basis that permanently working remotely would have a negative impact on the Claimant’s performance and quality of work. The Tribunal acknowledged the Claimant’s positive performance reviews while working remotely but noted that she was “ultimately not working in the way envisaged by the Respondent”. 

Commentary from the Tribunal suggests that if the Respondent had given no critical thought to the reasons it gave when refusing the request such as applying a blanket policy on flexible working, the outcome of the Claimant’s Tribunal claim may have been very different.

Key takeaways

The judge deciding this case highlighted a likely ongoing issue in today's workplace, which will no doubt continue to be a subject of litigation to come, especially given that the right to request flexible working will become a day one right from April 2024. The widespread availability of advanced technology to connect people has significantly impacted traditional business structures with many companies now debating the necessity of employees being physically present in an office location. The working patterns that employers have implemented in this post-pandemic world will vary as there is no one-size-fits-all solution for all companies. At the core of these considerations is a subjective debate about whether in person or remote contact is better.

The Claimant’s seniority in this case was a relevant factor when looking at the impact of permanent remote working on the Claimant’s quality of work and performance. The same arguments may not be able in respect of a more junior employee depending on their role. 

Some employers may be jumping for joy at the outcome of this case and believe they can reject all flexible working requests asking for remote working from now on. While this case provides some comfort to employers, particularly given the potential increase in flexible working requests once the changes to the regime come in later this year, employers should be mindful to consider each request on its own facts and ensure a reasonable process is followed.

 

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