Flexible Working Requests ? The Importance of Consideration and Communication in Refusal

As we enter into 2024, discussions continue regarding employees’ physical attendance in the workplace. For many employers, the uncertainty following the pandemic of how best to structure their working practices for both business efficacy and employee satisfaction led to a lack of clearly defined terms regarding minimum levels of attendance in the workplace.

Whilst many employers and employees have benefited from hybrid working practices, there are challenges for employers who are seeking to increase their employees’ workplace attendance, which includes considerations regarding whether changes in working patterns―such as hybrid or remote working―were contractually agreed to or whether these working patterns have become implied terms of employment.

As some employers seek to increase the level of employees’ workplace attendance, there has been a subsequent increase in flexible working request from employees wanting to maintain their hybrid or remote working patterns. This is expected to further increase from April of this year when the Employment Relations (Flexible Working) Act 2023 comes into force and the right to make a flexible working request becomes a “day one” right (as set out further below).

A recent employment tribunal case―Wilson v Financial Conduct Authority ―provides some assistance to employers as a reminder of both the importance and benefits of following the statutory process and setting out clear reasoning when dealing with flexible working requests.

The case also serves as a useful reminder that a flexible working request is just that: a request. It is not an automatic right to flexible working, such that employers may lawfully refuse a flexible working request where they have followed process and demonstrated careful consideration of the request.

Wilson v Financial Conduct Authority ? Flexible Working Request

In this case, Miss Elizabeth Wilson, the claimant, had been employed by the Financial Conduct Authority since 2005 and worked at a physical location until 2020, when it was agreed that she would work remotely for “health reasons”. At this time, Wilson was employed as a senior manager.

As pandemic restrictions eased, the FCA adopted a policy requesting staff to attend their office location at least 40 per cent of their working time with up to 60 per cent of their hours to be worked remotely. This roughly equated to employees attending the office twice a week.

In December 2022, the claimant submitted a flexible working application seeking to change her terms of employment to allow her to work completely remotely.

In March 2023, after a consultation process and consideration period, which took into account the claimant’s positive performance reviews, the FCA refused the application on the statutory ground of detrimental impact on performance or quality of output, given the claimant “will not attend face-to-face training sessions, departmental away days/meetings” and “will not be able to provide face-to-face training or coaching to team members or new joiners.” The FCA also noted the claimant’s input in management strategy and in-person collaboration would be negatively impacted.

The claimant lodged an appeal against this decision, which was subsequently rejected by the FCA at the end of March 2023. The appeal decision acknowledged the claimant’s “good performance” to date but concluded that “it would still be better and of real benefit to you and, in particular, your team and your team’s performance, if they were able to connect with you in person in the office.”

The Tribunal Claim

The claimant lodged a tribunal claim accusing the FCA of failing to communicate the appeal outcome within the statutory decision period and basing its rejection of the flexible working application on incorrect facts.

The tribunal found that the FCA had breached the statutory time limit to respond to the claimant’s flexible working request by 21 days, for which the claimant was awarded compensation of ￡643.

In respect of the alleged “incorrect facts” that the FCA had relied on in rejecting her appeal, the tribunal heard at length from the claimant’s manager who had first considered the flexible working request and found that the claimant’s inability to engage in the following areas would detrimentally impact the quality and performance:

??Meeting and welcoming new staff;

?Internal training, supervision and department needs where a line manager has a visible presence;

?Attendance at in-person events, conferences and planning meetings;

?Attendance at weekly “cascade” meetings where information is shared by senior managers and individual and team successes are acknowledged and celebrated.?

In his findings, Employment Judge Judith Richter concurred with the FCA stating that:

[A]n inability to complete these elements clearly does detrimentally impact upon the performance and quality of Miss Wilson’s work as it is expected by the Respondents. Again I readily acknowledge Miss Wilson’s excellent references and performance reviews and it is clear that she is performing well in her work, but ultimately she is not working in the way envisaged by the Respondent. As such these factors do seem to me to highlight areas where the Claimant’s work would not be to the quality or performance that her employers would wish if the application was granted.

In further guidance to employers, EJ Richter emphasized “there is no right to require an employer to permit that an employee works exclusively remotely but, as is engaged in this case, there is a right that an employer considers such a request in accordance with the statutory scheme.”

Flexible Working Requests – The Statutory Scheme

To the point made by EJ Richter in the above case, and by way of brief reminder from 6 April 2024, the Employment Relations (Flexible Working) Act 2023 will come into force, which will make the following changes to the right to request flexible working:

?The right to request flexible working will become a day one right (there will no longer be a requirement for a qualifying period of 26 weeks’ continuous employment).

?Employees will no longer have to explain what effect their requested change may have on the employer and how any such effect might be dealt with.

?Employees will be entitled to make two requests (instead of one) in any 12-month period.

?Employers will not be able to refuse a request unless the employee has been consulted.

?Employers will have to make a decision in two months (reduced from three months), subject to agreeing a longer decision period.

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Employers should also be aware that on 11 January 2024, Acas published its Draft Code of Practice―Code of Practice on requests for flexible working which is expected to come into effect in April 2024.

Employers must consider their statutory obligations and bear in mind the conclusions of EJ Richter that “there will not be one solution which will work for all companies or even for all roles within a company”. Whilst it is likely that there will be an ongoing “qualitative debate” to be had regarding working practices, ultimately each flexible working request will require its own consideration. This will be particularly important to avoid any claims of direct or indirect discrimination.

In conclusion, whilst this was an Employment Tribunal decision, and as such is not binding on employers in other cases, it is a case which, in the words of EJ Richter, raises “key issues arising in the modern workplace which undoubtedly will be the subject of continued litigation.”

Please do get in touch with any queries relating to this case and best practices in implementing the new flexible working statutory scheme. We are also always happy to provide training and assistance in dealing with flexible working requests in light of continued case law in this area, the updated legislation and Acas Code of Practice.