In one of the first cases to consider remote working since the Covid pandemic, the employment tribunal has rejected a claim from an employee who wanted to work exclusively from home. With some employers requiring staff to return to the workplace full-time, or considering doing so in the near future, we look at why this employee’s claim failed and some key takeaways for employers from the tribunal’s decision. Further information about flexible working requests can also be found in our earlier newsletter.
What was the case about?
In Wilson v Financial Conduct Authority (FCA) [2023], Ms Wilson was employed as a manager. She had been working from home since early 2020. In 2022, her employer asked staff to attend the office two days per week, with the remaining time to be worked from home. Ms Wilson submitted a flexible working request to work exclusively from home. There were no health reasons for the request, which was rejected by her employer. Ms Wilson brought a claim in the employment tribunal arguing that her flexible working request had been decided on “incorrect facts”.
Why did the employee’s case fail?
The fact that Ms Wilson was a manager and had a significant number of direct and in-direct line reports, as well as her request to not attend the office at all, worked against her. The tribunal accepted that physical presence in the office was better for “rapid discussion” and “non-verbal communication”. Not attending the office meant that Ms Wilson would miss face-to-face training sessions; weekly “cascade” meetings; away days and strategy meetings; and the in-person induction of new staff. Even though she was performing very well and had built effective relationships when home-working, the tribunal noted that “ultimately she is not working in the way envisaged by the Respondent”, and that working entirely from home would pose “potential” risks to her performance. In other words, the employer’s concerns about the possible detrimental impact on performance and quality as a result of the complete lack of in-person interaction were sufficient.
Were there other important takeaways from the case?
The judge noted that, despite the advances in technology, it remains the case that observing and responding to non-verbal communication outside of formal events such as meetings is an important part of working with others and this can only occur in person. Even exceptional performance does not mitigate against the weaknesses of home working.
Despite losing her substantive claim, the employee was awarded one week’s pay because the FCA had not complied with the three-month statutory time limit to inform her of its decision. Employers should therefore ensure that they communicate their decision within the timeframe specified by law or agree on an extension of time and, from April 2024, the new time limit is two months.
Does this decision mean that employers can refuse all requests for home working?
No. Every flexible working request must be considered on its own merits and particular care should be taken where the employee has a health condition or potential disability, or is making their request due to childcare or other family-related reasons. Employers should apply critical thought to each flexible working request rather than mechanically adhering to their attendance policy. Decision-makers should also keep clear and contemporaneous records of their rationale for their decisions as these may ultimately be considered by a tribunal.
This tribunal decision highlights the ongoing challenges in striking the right balance between remote and office-based working, with an ongoing tension between the preferences of employers and employees. With the right to request flexible working soon to become a ‘day one’ right and employees having the statutory right to make two requests every 12 months, employers should be braced for more requests from their workforce.
But employees should be wary because working from home carries some risk, apparently. As recently reported in The Telegraph, a study has concluded that those working from home are more likely to be made redundant as a result of lower productivity and the perception of bosses that they are less connected to the business.
How 3CS can help
We can advise and support your business in preparing for the changes to the flexible working regime, including updating your policies and providing bespoke training about the new requirement to consult with employees when a request is going to be refused. For further information or help with this or any employment law matter, please get in touch with your usual 3CS contact.
