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Tribunal finds flexible working request to work at home was reasonably refused

Employee working from home
Flexible working request for 100% working from home refused

Flexible working requests – Tribunal finds homeworking request was reasonably refused

In Mrs E Wilson Vs The Financial Conduct authority, an employment tribunal found that while the FCA missed the time limit for considering Mrs Wilson’s flexible working request (and awarded compensation) the actual decision to refuse her request to work entirely from home was a fair one.

In our look forward to 2024 employment law developments we mentioned that, from April, the right to request flexible working would become a day 1 right and the period required for the employer to respond to the request from reduces from 3 months to 2. This case then is a timely reminder for employers dealing with flexible working requests, it’s also one of the first judgments on requests to work entirely from home, and so it’s worth taking a moment to consider the ruling.

Mrs Wilson makes her flexible working request 9th December 2022

Having already worked satisfactorily from home since before the pandemic (evidenced by excellent performance reviews), Mrs Wilson applied to make the arrangement permanent. The FCA had published a policy requiring staff to work 40% from the office.

FCA response on 8th March 2023 was beyond the 3-month consideration period for flexible working requests

Her line manager initially rejected the application, and her appeal was also rejected by a more senior manager, but the process took longer than the prescribed 3 months.

In situations where an employer fails to conclude its responses to a request within time (and this must include the appeal outcome) a tribunal can award 8 weeks pay. In this case the breach was minor and openly conceded as an error by Mrs Wilson’s manager, who initially thought HR were dealing with the request, and so the tribunal awarded 1 weeks’ pay as compensation, this is capped at the statutory limit, currently £643.

It is worth noting that from April 2024 the consideration period will reduce to 2 months.

Having established the FCA’s failure to respond to the request in time, the tribunal went on to look at the reasons for the rejection of the request.

FCA gives 6 reasons why working entirely from home would be detrimental

In her consideration of the flexible working request, Mrs Wilson’s manager made the point that Mrs Wilson was a senior manager responsible for managing 14 people, and she felt that if she were to be allowed to work from home entirely, she would not be able to (as effectively) carry out the following:

  1. Meeting and welcoming new staff members
  2. 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
  3. Attendance at in-person events and conferences and planning meetings run within physical office accommodation;
  4. Attendance at weekly ‘Cascade’ meetings where information is imparted by Senior Managers and individual and team successes are acknowledged and celebrated
  5. Authorisation Leadership sessions where managers, Heads of Departments and Directors meet to discuss key topics
  6. ‘Department Day’ – management team would present topics to the department and spend the day together. Miss Lipscombe-Mitchell would want to run the session in a ‘market stall’ layout so staff, especially new staff could move around and physically meet the managers.

She also observed that as a Senior Manager Mrs Wilson was required to enforce the Respondent’s policies and procedures, including the 40% attendance policy, which would be difficult when Mrs Wilson was not herself following the same policy.

It was in those circumstances that she refused the application.

Appeal manager does not re-hear Mrs Wilson’s flexible working request, but this is not fatal to the FCA’s position on it

The manager considering the appeal chose to look at the reasonableness of Mrs Wilson’s manager’s decision based on the written outcome of the flexible working requests, and wrote to Mrs Wilson (albeit slightly outside the permitted time) to offer his views on why he agreed with her analysis and would support the decision to refuse her request, giving his own additional thoughts on why he felt home working would be inappropriate given Mrs Wilson’s role.

It appears from the judgement that the appeal manager didn’t meet with Mrs Wilson as a part of his appeal consideration, but the tribunal accepted that the appeal was nonetheless properly completed (albeit outside of the permitted 3 months).

Flexible working request rejections often fail when employers don’t genuinely investigate how they might be made to work

Mrs Wilson’s representative at the tribunal hearing cited the case of Commotion v Rutty [2006] IRLR 171 (EAT) in which an employer (unfairly) refused a warehouse worker’s request for flexible working. In that case the tribunal wasn’t satisfied that the employer had presented any real evidence to support their belief that the request couldn’t be accommodated.

The tribunal in that case was entitled to enquire into was to what would have been the effect of granting the application – could it have been coped with without disruption? What did other staff feel about it? Could they make up the time?

Mrs Wilson’s representative pointed to her excellent reviews while homeworking as evidence of the FCA similarly failing to properly consider her request to work permanently from home and pointed out that other staff in the FCA did work entirely from home.

Judge satisified that Mrs Wilson’s performance could improve if she attended the office

Despite these claims, the judge in this case found that the 6 reasons given, and in particular 2), 3) and 4) were well thought out and properly considered. Mrs Wilson’s seniority and management responsibilities was noted, as was the fact that she did not have any relevant health issues – none of the other people working entirely from home were managers, and all of them had health issues which were relevant to their own situations.

Judge acknowledges many companies will be having home working discussions

In her concluding remarks Employment Judge Richter said:

“The need for staff to provide a physical presence at an office location is a debate which many companies are now engaged in and which the solutions arrived at will no doubt differ considerably from employer to employer, there will not be one solution which will work for all companies or even for all roles within a company. There is at the heart of many of these considerations a ‘qualitative debate’ as to whether face to face or virtual contact is better. Ultimately it may be the case that each situation requires its own consideration.”

Judge regards the FCA’s consideration of Mrs Wilson’s flexible working request to be genuine

In commenting on Mrs Wilson’s manager’s consideration of her request Judge Richter said:

“I find as a fact that Miss Lipscombe-Mitchell did seek to genuinely consider the individual merits of the application as opposed to simply seeking to enforce the Respondent’s attendance policy.”

It is worth noting here that just because we have a policy on employment matters, it isn’t the case that the policy should be enforced without proper consideration of the facts relevant to a particular employee’s circumstances, and this is likely to be of significant importance and the case of flexible working requests.

Judge considers weaknesses of home working

Whilst acknowledging that working from home was necessary during the pandemic, the Employment Judge was of the view that employer’s were nonetheless entitled to expect jobs to be carried out in a particular way, and even though Mrs Wilson had received excellent performance reviews while home working, it did not mean that aspects of her role couldn’t be better performed in the office.

Judge Richter agreed …..” that [Mrs Wilson’s manager] is right to identify weaknesses with remote working. 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. Similarly there is, as has been identified, a limitation to the ability to observe and 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. This is particularly so when considering the senior position held by the Claimant.”

Commenting on the middle 3 of the 6 reasons offered by Mrs Wilson’s manager the Judge continued:

“Further in particular I note items ii), iii) and iv) as being factors where when the situation is considered vis a vis the application being granted or refused a detriment to performance and quality is clearly established. These factors envisage a physical presence by Miss Wilson within an office and so it is trite to observe they simply cannot be achieved in the same way through remote working.

I am satisfied on the evidence that these are elements of the work of the Claimant which the Respondent legitimately expect her to complete. An inability to complete these elements clearly does detrimentally impact upon the performance and quality of Miss Wilson’s work as it is expected by the Respondents. Again, I readily acknowledge Miss Wilson’s excellent references and performance reviews and it is clear that she is performing well in her work, but ultimately she is not working in the way envisaged by the Respondent. As such these factors do seem to me to highlight areas where the Claimant’s work would not to the quality or performance that her employers would wish if the application was granted.”

Summary and top tips for employers dealing with flexible working requests

  • Remember that a flexible working request (including any appeal) needs to be responded to within the statutory timeframe, this will reduce to 2 months from 3 in April 2024
  • Employers should approach the request by considering how it might be accommodated, rather than why it can’t
  • Don’t fall into the trap of ‘policy says no’ – cases should be considered on their own merits, irrespective of the Flexible Working (Requests) Policy
  • Seniority can be a relevant factor, this case gives useful guidance on the types of reasons a tribunal might consider relevant… long as they’re true of course
  • The fact that an employee is working effectively at home does not mean that improvements can’t be made by an element of office working
  • Always carefully consider and health issues presented as part of a reason for an employee making a flexible working request to work from home
  • If there are genuine concerns about the viability of a request to work 100% from home, consider (if possible) making a counter proposal – perhaps a smaller percentage of office attendance than the policy allows – if the employee refuses this it will strengthen the employer’s position in the eyes of a future tribunal
  • If it looks like a flexible working request is going to take longer than the consideration time allowed (reducing to 2 months from April 2024), seek an agreement with the employee for a longer time period, and record their agreement in writing.

If you’re thinking of outsourcing your HR or employment law needs, why not contact myHRdept? Call us on 01628 820515 to discuss your requirements or contact us and we’ll call you back.



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