What can we learn from FCA flexible working case?

In 2023, four in ten employers returned fully to the office and it is expected that this will increase significantly into 2024.

It is no surprise then that there has been a great deal of interest in a recent case brought before the Employment Tribunal, which saw an employee’s request to work from home full-time refused.

A lot of questions have been asked over whether this case sets a precedent for other employers to be able to refuse similar requests, as they seek to get their workforces back to the office. The simple answer is no.

What can we learn from this case and how should employers deal with such requests going forward, particularly if they are keen to encourage some office-based working? Louise Taft, consultant lawyer in our employment team, explores.

The case in question was brought by an employee at the Financial Conduct Authority (FCA), Elizabeth Wilson, who worked as a manager and sought to work from home full-time after the FCA began to encourage a two day a week return to the office.

She had been working entirely from home since the pandemic struck in 2020. In 2022, Wilson submitted a flexible working request seeking to continue to work from home full-time, arguing that she had been performing well in this way.

However, her manager turned down the request because of the “detrimental impact on performance and quality of output” that full-time working from home could mean. She appealed, but this too was rejected which was when she lodged a tribunal claim.

Wilson brought the case to Employment Tribunal under flexible working legislation. However for an employee to bring a successful case under that legislation, they have to prove that their employer refused their request based on incorrect facts.

In this case, Wilson argued that she had worked successfully from home for the last three years and had achieved excellent performance results to prove this.

However, the FCA was able to refuse her request on the basis of “specified business reasons” and the Tribunal found in its favour.

The FCA’s argument was that permanent homeworking would have a detrimental impact on quality and performance – not just for her, but for the wider team, citing the importance of junior members of staff being able to ‘connect’ with the employee in the office.

Throughout the case, the FCA was able to point to several detailed reasons why 100% homeworking would have a detrimental impact on performance and quality in the future, and their assertions were held to be true.

Does this set a precedent?

HR professionals needn’t get too excited just yet, because this case doesn’t set a legal precedent since it was an Employment Tribunal judgment.

What it does do is give us an indication of how Tribunals could potentially deal with similar cases. Although, that being said, the Tribunal did labour the point that each situation is different.

What can employers learn from this case?

This is one of the first tribunal cases to consider rights and expectations around remote working, and with more ‘back to work’ policies expected this year, is an interesting case.

However, from the employer perspective, it changes very little and the Judge was clear that, amid rising litigation, each case will be considered on its own merits.

Employers will therefore need to continue doing what they have already been doing when dealing with flexible working requests.

When faced with a request for flexible working, you need to make sure you carefully consider the individual circumstances and can provide a rational and evidenced explanation for a refusal, which you can draw upon later should you need to at Tribunal.

Simply asserting one of the ‘prescribed reasons’ for refusal, such as quality or performance, won’t be enough on its own, as previous cases which have found in favour of employees, have proven.

What you need to do is give a clear and detailed explanation for the refusal and show that you have carefully considered the application of this. Being able to evidence the wider impact on teams and business performance will also be useful.

Don’t forget the Equality Act

What Wilson’s case didn’t do was consider the Equality Act, as it was not part of her claim.

Equalities issues often go hand in glove with flexible working requests – particularly if the reason for the request is to address caring responsibilities or to deal with the consequences of a disability.

You should therefore take great care in dealing with requests involving the Equality Act, because, in addition to basing your response to a flexible working request on the correct facts, you will also need to demonstrate your response is proportionate.

For help and advice on the issues discussed in the article, don’t hesitate to get in touch.