UK: Flexible Work Requests – Tribunal Accepts That Limitations Of Technology May Mean Some Roles Are Performed Better In Person

A tribunal has ruled that the FCA's refusal of a senior manager's request to work entirely from home, on the basis that this would have a detrimental impact on the quality and performance of her work (one of the eight acceptable statutory reasons), was not 'based on incorrect facts' and so was not in breach of the statutory request regime. The ruling highlights the importance of assessing a flexible work request individually, in light of the specific role, responsibilities and other circumstances. (Wilson v FCA)

As a senior team leader, the claimant's role involved training and supervising members of her team, attending events and conferences and participating in weekly team and management strategy meetings and away days. The tribunal accepted the employer's evidence that, whilst these tasks could be completed remotely, in person performance of these tasks would be more effective. Weaknesses with remote working, including a more limited ability to respond in the context of rapid discussion and to observe and respond to non-verbal communication, meant that in person performance would be better. The employer was entitled to expect this higher level of performance given the claimant's role, notwithstanding that the claimant had been performing well remotely (during the pandemic) and that much of her work could be achieved remotely.

• The claimant had argued that there was no empirical evidence that in person working is better than remote working, that there were other fully remote employees (albeit seemingly for health reasons, and none with line management responsibilities), and that the employer was working towards location-agnostic recruitment. She also argued that the employer's policy of allowing staff to choose which days to attend the office meant that in reality there was a very limited likelihood of her actually developing relationships by seeing the same staff members on a regular basis. The employer's response was that managers could choose regular days to attend so that staff would know and be able to approach them should they wish to; office working would also allow a manager to intervene and support when they happened to see a member of staff in distress.
• The tribunal found the decision-maker's evidence to be clear and cogent, and accepted her experience that face to face engagement was more effective for some tasks. The tribunal held that she had carefully considered the merits of the application, analysing which parts of the role would be affected, and had taken into account the claimant's high performance while working remotely. She had also been willing to discuss a compromise solution allowing the claimant to attend the office less often than its 40% policy (which the claimant rejected). The tribunal contrasted this with another case where a claim was upheld given that no critical thought had gone into the asserted reasons for refusal, a blanket restriction on flexible working was clearly not justified and the merits of the individual application had not been considered. Simply wishing to avoid setting a precedent of departing from a hybrid policy will not be enough.
• The tribunal considered that the employee's senior position was significant. Her managerial responsibilities and senior position was relevant to the performance and work to be expected from her. It also rendered the ability to observe and respond to non-verbal communication in informal encounters with team members particularly important.
• The judge commented that the need for staff to provide a physical presence at an office location will differ considerably from employer to employer, and between roles within a company, and that each situation may need to be considered individually.
• The employee had not claimed that she needed to work remotely because of health or disability issues or to facilitate caring for dependents, and she had not sought to claim indirect sex or disability discrimination. Had she done so, the tribunal might have examined more closely whether the employer's decision was justified on the facts.

The claimant was awarded one week's capped pay (£643) because the employer had failed to reach its decision on her internal appeal within the required period. Given the size and resources of the employer, there was no reason why it could not have dealt with the application within the required timeframe, or sought an extension when it became clear further time was needed. One week's pay was the appropriate amount (the maximum is eight weeks' pay) given that the reason for the delay was confusion as to who was responsible for dealing with the request, and the fact that the decision was only 21 days late.

From 6 April 2024 employees will be able to make a flexible work request from day one of their employment and make two requests per 12 months. The time period for determining a request, including any appeal, will also be reduced from three to two months (unless an extension is agreed). The (draft) Acas revised statutory code makes clear that the employer should consult with the employee before rejecting a request and should explore alternative options if the initial request is not feasible. These changes (discussed further here) will make it even more important for employers to have clear procedures to ensure requests are dealt with promptly and individually assessed, to train managers on operating those procedures, and to keep a paper trail documenting the relevant discussions.

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