Flexible working: has the landscape changed?

Following the pandemic, flexible working practices have continued. The most common working pattern is a hybrid one in which employees split their time between the office and home. However, some employees are looking to work from home on a permanent basis.

Employees looking for a better balance between the demands of work and personal life may seek a permanent change in their working arrangements, for example, through part-time working, job-sharing or a change in working hours. While employees cannot insist their proposal for working in a different way is accepted, they do have a statutory right to ask for a flexible working arrangement and to have that request seriously considered.

This is exactly what happened in the case of Wilson v Financial Conduct Authority.

Wilson v Financial Conduct Authority: The Facts

Miss Wilson had worked for the Financial Conduct Authority (FCA) as a Senior Manager and had been working remotely since the beginning of the pandemic for health reasons. Once the pandemic restrictions were eased, the FCA implemented a policy which required staff to split working time, such that employees were expected to work in the office 40% of the time and could work the other 60% remotely. Consequently, Miss Wilson made a flexible working request to change her employment terms to enable her to work entirely remotely.

Miss Wilson received the decision 21 days after the statutory deadline due to an internal misunderstanding about who was responsible for processing the request. Nonetheless, her request was denied on the basis that it could have had a “detrimental impact on performance or quality of output” as Miss Wilson 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”. Further, the FCA said that given Miss Wilson was a senior manager, she played a vital leadership role and she oversaw a number of people.

Miss Wilson then brought a Tribunal claim against the FCA.

The Tribunal’s Findings

The Tribunal found that the FCA had breached the statutory decision period time limit and they were ordered to pay Miss Wilson one week’s pay as compensation. While the maximum compensation for such a breach can be up to eight weeks’ pay, the tribunal concluded that one week’s pay was deemed appropriate in this case as the delay wasn’t excessive.

The Tribunal then went on to consider the FCA’s assertion – that if Miss Wilson worked entirely from home, it would have a detrimental impact on quality and performance. The Tribunal found that Miss Wilson’s role as a senior manager gave rise to managerial and leadership responsibilities within her department at the FCA. Miss Wilson’s line manager provided various reasons as to why there would be a detriment if she 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.

On the facts, the Tribunal held that the FCA was entitled to reject Miss Wilson’s flexible working request, and the judge had particular regard to the fact that Miss Wilson’s line manager had genuinely considered the merits of her application and set out specific reasons why it may have a detrimental impact on the organisation. It is seen in the commentary from the Tribunal that had the FCA not given any real thought as to the reasons why flexible working would not be appropriate in the circumstances and instead applied a blanket policy on flexible working, the outcome of Miss Wilson’s Tribunal claim may have been very different.

What is the future of remote working?

Employers are cautioned not to take a carte blanche approach in rejecting flexible working requests asking for remote working. However, while this case provides some comfort to employers, the government has announced that new flexible working regulations will come into effect on 6 April 2024, giving employees the right to request flexible working arrangements from day one of employment. It is possible this change in legislation may result in an increase in flexible working applications, so employers should be mindful to consider each request based on its own facts and ensure a reasonable process is followed.

Flexible working will no doubt continue to be a hot topic, so when faced with a flexible working request, employers should properly consult with the employee about the request and explore alternative options if the original request isn’t workable. If the request genuinely cannot be accommodated, the reasons should be explained and consideration should be given to the individual circumstances of each employee, rather than applying a blanket approach of reinforcing a company policy.

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