Request to work from home full-time turned down by employer

Background

Miss Wilson was a senior manager at the FCA and had worked there since 2005. She earned around £140,000 a year. She had line management responsibilities for 14 staff. In 2020, because of the pandemic and the series of lockdowns, most of the FCA’s staff worked remotely.

Once the lockdown restrictions were lifted, the FCA, like many organisations, reviewed their working practices. They put in place a policy of hybrid working where staff were required to attend an office location for 40% of their time and could work remotely for 60% of their time. Senior leaders were expected to attend the office 50% of their time but this did not include Miss Wilson.

She wanted to work remotely full-time and made a flexible working request pursuant to the Employment Rights Act 1996 (“the Act”) on 9 December 2022.

A meeting was arranged to discuss the request with the line manager, Miss Lipscombe-Mitchell. She then wrote to inform Miss Wilson that the request was refused on 2 March 2023.

It was accepted that Miss Wilson had performed very well when she worked from home and had built effective relationships with colleagues despite not meeting in person. However, the FCA considered that approving the request could have a detrimental impact on performance or quality of output. This was because Miss Wilson would not be able to attend face-to-face training sessions, departmental away days/meetings nor in-person training or coaching to team members or new joiners. Further, her ability to input in Management strategy meetings and be involved in in-person collaboration would also be negatively impacted.

The fact that Miss Wilson was a senior manager and played a “vital leadership role” for the department was also referred to. It was a reasonable expectation that junior colleagues would have the ability to meet senior managers in person from time to time and agreeing to the request would have a negative impact on the department.

Miss Wilson appealed the decision on 9 March 2023 and a letter rejecting the appeal was sent to her on 29 March 2023.

Once again, this stated that her performance was good. It went on to state however, that Miss Wilson’s performance and output could not just be viewed through the “very linear lens” of her own perspective. It also had to be viewed in relation to those that she managed directly and indirectly within her chain of command. Finally, that it was reasonable for the FCA to conclude that it would be  of real benefit to Miss Wilson and her team and their performance, if they were able to connect with Miss Wilson in person in the office.

Employment Tribunal

Miss Wilson brought two claims:

• The failure to communicate the appeal outcome within the decision period provided for by the Act, namely three months.
• That the decision to reject her application was based on incorrect facts.

Interestingly, relatively few claims are brought relating to the flexible working statutory request procedure. Most claims that are brought when an application is rejected tend to be discrimination claims, often sex discrimination claims.

In relation to the first claim, the appeal outcome letter was sent on 29 March 2023 which was 21 days after the statutory decision period and there had been no agreement to extend the time limit. The Employment Tribunal upheld that claim. It took into account that an employer of the size and with the knowledge and resources of the FCA is “clearly well placed” to deal with applications in a timely manner. It made an award of £643, the statutory limit on a week’s pay. The maximum that could have been awarded was eight weeks’ pay.

In relation to the second claim, Miss Wilson argued that the rejection of her flexible working request was based on incorrect facts, specifically, the FCA’s assertion that if she worked entirely from home, it would have a detrimental impact on quality and performance.

The Employment Tribunal dismissed the claim.

It referred to the factors the FCA considered when it made the decision about the request and which would have a detrimental impact on the quality and performance of Miss Wilson’s work if she worked remotely full-time.

• Meeting and welcoming new staff members
• Internal training, supervision and department needs where a line manager has a visible presence in the office to provide structured or informal/ad hoc advice and support to team members
• Attendance at in-person events and conferences and planning meetings run within physical office accommodation
• Attendance at weekly “Cascade” meetings where information is imparted by Senior Managers and individual and team successes are acknowledged and celebrated
• Authorisation Leadership sessions where managers, Heads of Departments and Directors meet to discuss key topics
• “Department Day” – management team would present topics to the department and spend the day together. The session would be run in a “market stall” layout so staff, especially new staff could move around and physically meet the managers.

Miss Lipscombe-Mitchell, when dealing with the application, acknowledged that whilst it was possible to conduct a lot of these activities remotely, her assessment was that they were more effective when conducted in person. Another factor was that as a senior manager, with managerial responsibilities, Miss Wilson was required to enforce the FCA’s own policies and procedures, including the 40% attendance policy. This would be difficult if she was not following the policy herself.

The Employment Tribunal found that Miss Lipscombe-Mitchell gave clear and cogent evidence about her approach to the flexible working application. She gave detailed consideration to the request and identified weaknesses with remote working. Further, Miss Wilson’s position as a senior manager provided an important context when considering the application.

The Employment Tribunal was satisfied that Miss Lipscombe-Mitchell’s decision was not based on incorrect facts.

Comment

Many organisations are facing requests for full-time homeworking and this case is possibly the first Employment Tribunal decision on this point. Although it is not binding on other Employment Tribunals, the case deals with an important issue. As the Employment Tribunal judge said:

As mentioned in our Looking ahead to 2024 briefing, there will be significant changes to flexible working applications made on or after 6 April 2024. The right to make a request will become a day-one right. Other changes also likely to apply include permitting employees to make two requests in each 12-month period, requiring employers to consult before rejecting a request and reducing the employer’s response period from three to two months. There will be no change to the statutory business reasons for rejecting a request.

On 11 January 2024, Acas published an updated draft Code of Practice on requests for flexible working to reflect these changes. Parliamentary approval is needed before the Code is expected to come into effect in April 2024.