For any HR teams contemplating their hybrid and flexible working policies for 2024, a tribunal decision that emerged last week provided some food for thought.
Elizabeth Wilson, a senior manager at the Financial Conduct Authority, lost her claim after her request to work from home full time was rejected.
She claimed that because she had continued to be a high performer working remotely, she should continue to do so even though the regulator had instituted a policy of asking employees to return to the office two days a week.
However, her director argued that if she solely worked from home and attended meetings virtually, this would have a negative impact on her ability to effectively manage her four-person team, and reduce in-person collaboration.
With a number of high profile bosses now insisting on a full return to in-person working – Bank of America has for example warned of disciplinary action if employees refuse to accept the return-to-office mandate – what does this decision mean from a legal perspective?
Precedent?
“As a first instance employment tribunal decision, it does not create any binding precedent but it does provide a good illustration of how a tribunal will approach claims for flexible working, and the grounds on which employers might lawfully reject such claims,” explains Olivia Toulson, legal director in the employment team at Birketts.
In his judgment, employment judge Robert Richter indicated that future tribunals involving flexible and hybrid working requests would be considered on their own merits, adding that the case “raises a key issue in the modern workplace and which will, no doubt, be the subject of continued litigation”.
Flexible working requests
For its part, the outcome of the FCA case rested very heavily on the facts, and how Wilson’s own manager had dealt with the situation.
“These cases are highly fact specific – a request to work exclusively from home from another staff member in a different context might well be considered very differently,” says Nicola Wallbank, employment partner at Freeths.
“In this case the tribunal was satisfied that detailed consideration had been given to the request, and that real issues had been identified that working exclusively from home would have a detrimental impact on performance and quality, particularly when it came to meeting and welcoming new members of staff, providing structured or informal/ad hoc advice and support to team members, and attending team events and weekly meetings.”
Nature of the claim
Another interesting aspect of the case is the fact it focuses solely on the rejection of the request and how it was handled, rather than escalating this to a discrimination claim. Wilson’s core argument in her claim is that the rejection was based on “incorrect facts”.
On this point, Wilson did win an award of £643, or a week’s pay, because the tribunal found the FCA to have breached the time period by which it should have communicated the refusal of the request.
“Usually claims are made in the context of constructive dismissal or discrimination claims,” points out Corinne Aldridge, head of employment at Kingsley Napley.
Wallbank adds: “In many flexible working cases there is the added dimension that the request is being made to facilitate childcare or to support an employee to cope with matters associated with a disability, in which case a requirement to work full time from the office might lead to indirect discrimination claims.
“In that type of case the bar is higher and careful consideration of a request is all the more important so that employers can robustly defend any refusal on the basis that it is justified as a proportionate means of achieving a legitimate aim.”
Potential for discrimination
Naomi Greenwood, employment partner at Moore Barlow, points to the 2021 case of Follows vs Nationwide Building Society, where a manager was employed on a home working contract but her role was made redundant after a decision that her role should be office-based.
Follows’ claim for indirect disability discrimination – she was a carer for her disabled mother – was upheld.
Greenwood argues that this case demonstrates why employers should be mindful of where a rejection for someone to work from home could give rise to discrimination.
She says: “In this case it was accepted as a general proposition, that carers for disabled people are less likely than non-carers to be able to satisfy a requirement to be office-based, because of their care commitments and that this would put them at a substantial disadvantage.
“It was also accepted that women are particularly affected by employment practices that make it more difficult to care for elderly relatives on the basis that they take on the lion’s share of responsibility.”
Reasons for rejecting a request
At Wilson’s tribunal, her manager presented detailed evidence of why her presence in the office would add value, says Shazia Shah, senior associate solicitor at Irwin Mitchell.
The tribunal made it very clear the employer had legitimate reasons to require some attendance and that her already high standard of work would be enhanced by doing so.” – Shazia Shah, Irwin Mitchell
“The claimant appeared to not want to come into the office at all, claiming that technology allowed her to interact with her colleagues and work effectively.
“The tribunal made it very clear the employer had legitimate reasons to require some attendance and that her already high standard of work would be enhanced by doing so.
“Had she been more flexible (excuse the pun) and agreed to come into the office to attend face to face training and to coach and manage junior staff, the outcome might have been different (and it’s possible that her employer would have agreed to it as a compromise).”
Shah adds that in reality, it is still not that difficult for employers to lawfully reject applications for flexible working, “provided they don’t do so out of hand and carefully consider what might work”.
“In most cases it is sensible to offer a trial period – then if that doesn’t work out in the way the parties anticipate, the employer has good grounds to reject it and ask the employee to return to their normal working pattern.
“Clearly it wasn’t necessary to offer a trial here. Instead the employer had to point to tangible reasons why they wanted the employee back in the office (at least for some of the time).”
Performance considerations
Wilson’s seniority was also an important factor in the case, adds Charlotte Smith, director in the employment team at Walker Morris. The fact she was a manager and mentor to a team of employees, and it would be beneficial to have one-to-one time with them in the office, was key.
“Particular regard was given to the fact that the claimant was a senior individual with managerial responsibilities,” says Smith. “These factors were balanced against her ‘excellent’ performance record while working remotely. The FCA’s decision-maker was therefore praised for the detailed consideration and qualitative assessment that had been undertaken.”
Gemma Dale, a lecturer at Liverpool John Moores University and flexible working specialist, points out in her blog that – as companies evolve their hybrid working strategies – many employees will be reluctant to return to the office for a number of reasons.
During or since the pandemic, for example, some will have moved further away from the office under the impression that mostly remote working would continue. Similarly travel is arguably less reliable and more expensive than pre-pandemic times, and many employees feel they simply get more done at home.
She says: “The judge did seem to believe, from their wording in the decision, that some aspects of work are less effective when conducted virtually – not everyone will share this view. Ultimately, a different set of facts could well give rise to a different decision in a future case.”
Future requests
What does this mean for flexible, hybrid and remote working policies and how requests are handled in the future?
“Granting such requests will no doubt depend on the individual circumstances, and employers will need to be mindful that they may receive an influx of requests following one acceptance,” says Christopher Hitchins, employment partner and London managing partner at Katten.
Working patterns are still evolving, and are not yet settled.” – Christopher Hitchins, Katten
“HR must have legitimate and fair policies across the board to avoid any claims further down the line. In granting flexible working arrangements they should make a clear consideration, and more importantly be able to back up any decisions further down the line if needed, to avoid any accusations of unfair practices.”
Hitchins adds that HR managers should have one eye on how working requirements might change in the future when granting or rejecting requests now, particularly as the regulations change in April, giving employees the right to request flexible working as soon as they start a new job.
“Working patterns are still evolving, and are not yet settled,” he says.
“As with this case, individual circumstances must be considered such as the contractual terms detailing where the place of work is, the business’s reasons why office-based work is needed, and whether the personal circumstances of the individual dictate that homeworking is a reasonable adjustment that must be considered under disability laws.
“These types of issues will continue to take up HR resources given that the right to request flexible working is anticipated to become law as a ‘day one’ right from April 2024.”
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