Earlier this month the Employment Tribunal decided a claim a case brought against the Financial Conduct Authority (FCA) that arose following the FCA’s rejection of a flexible working application.
The employee, a manager of a team of four, had worked from home for some time. When the FCA mandated that all its staff return to the office two days a week, she made a request to continue to work from home full time. Her request was rejected because her employer felt that it would have a negative impact on her (admittedly good) performance and that of her team if she solely worked at home. She disputed this and disagreed with her manager’s view that attending meetings virtually would be detrimental.
The Employment Judge agreed with the employer and said he was satisfied that they had ‘given detailed consideration’ to the request, and that ‘real issues had been identified that working exclusively from home would have a detrimental impact on performance and quality’.
A note of caution however, because this case does not set a precedent that employers can rely upon to insist that all of their staff work from the office in future.
It is a first instance decision, which means that other Employment Tribunals are not required to follow it. In employment disputes it is very rare to find two cases that are identical in their facts - and it is the facts of a matter that a case will always be decided upon.
It’s clear from the decision that the employer gave genuine and thorough consideration to the request to work from home, and that they had objective business reasons to reject it. This is the lesson that employers should take from this case.
The rejection may have come as a surprise to the employee, bearing in mind she had previously worked from home for a considerable period, with no obvious detrimental impact on her performance. However, employees are only entitled to request flexible working (rather than being entitled to work flexibly) and an employer who has one or more of the prescribed reasons to reject that request is well within their rights to do so.
Employers should take this decision as an opportunity to review their own flexible working request policies and provide training to their managers on the eight prescribed grounds upon which a request can be rejected. They should also remember they must be able to demonstrate how their grounds apply, rather than simply throwing out reasons without proper consideration. For example, if an employer believes that granting the request would have a detrimental impact on performance, they should set out exactly what they believe that detrimental impact would be.
For managers particularly, collaboration and mentoring are an important part of their role, and this is more difficult to do remotely. Also important to bear in mind is that monitoring your team’s well-being (a fundamental task for a manager) is often best done in person.
As in all things, balance is what is important. A business needs to thrive, and it can only do that when its employees thrive. Employers seeking to get their best out of their staff should genuinely consider whether remote working for at least part of an employee’s contracted hours will help them perform at their best, especially when those employees have caring responsibilities.
The employee in the FCA case did not mention discrimination, but employers should be aware of possible claims of that nature when rejecting flexible working requests. If a flexible working application is made by an employee to help them cope with matters associated with a disability, employers should be sure to avoid indirect discrimination.
The rules around flexible working will be changing in April 2024, so now is the time for employers to take stock of their obligations. If you’d like advice on this then please do contact any member of our Employment Team.
Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.