In Wilson v Financial Conduct Authority, the Employment Tribunal (ET) has found that the Financial Conduct Authority (FCA) was entitled to refuse an employee’s request to work entirely remotely, despite the fact that she was a strong performer and had worked effectively from home during the Covid-19 pandemic.

An employee with at least 26 weeks’ continuous service has the right to request flexible working for any reason, including the location where the employee will work. The employer may only refuse such a request for one of eight prescribed statutory reasons. In this case the reasons given by the FCA were that entirely remote working would have a detrimental impact on the quality and performance of Miss Wilson’s work. An employee may challenge an employer’s decision on a flexible working request on the basis that it was not decided on correct facts and may claim compensation if the employer fails to communicate the outcome of the request within the statutory timeframe.

Following the easing of the pandemic restrictions, the FCA had settled on a policy that staff should attend the office for 40% of their working time (50% for senior leaders). Miss Wilson was a senior manager at the FCA, earning around £140,000 per annum. She had management responsibilities for 14 staff.

The FCA recognised that Miss Wilson was a strong performer who had worked well from a remote location and had built effective relationships with colleagues despite not meeting them in person. It also recognised that much of Miss Wilson’s work could be done from home. However, the FCA concluded there would be a detrimental impact on aspects of Ms Wilson’s work if it were performed entirely online including:

• Meeting and welcoming new staff members;
• Internal training, supervision and department needs where a line manager has a visible presence in the office to provide structured or informal/ad hoc advice and support to team members;
• Attendance at in-person events and conferences and planning meetings run in the office;
• Attendance at weekly ‘Cascade’ meetings where information is imparted by Senior Managers and individual and team successes are acknowledged and celebrated;
• Authorisation Leadership sessions where managers, Heads of Departments and Directors meet to discuss key topics;
• ‘Department Day’ – management team would present topics to the department and spend the day together. Miss Wilson’s manager wanted to run the session in a ‘market stall’ layout so staff, especially new staff could move around and physically meet the managers.

The ET acknowledged that while many tasks could be completed successfully through remote working, the employer was right to identify weaknesses with remote working. For example, technology is not well suited to the fast-paced interplay of exchanges which occur in planning meetings or training events when rapid discussion can occur on topics. Similarly, there is a limit on the ability to observe and respond to non-verbal communication when working remotely. It was also noted that it would be difficult for Miss Wilson to enforce the FCA’s attendance policy in her team when she was not herself following the policy. Ultimately, while Miss Wilson was performing well in her work, she was not working in the way envisaged by her employer. Miss Wilson’s manager had given detailed consideration to her request and real issues had been identified by her. The ET was therefore satisfied that the decision was not based upon incorrect facts.

The ET found that the employer had breached the statutory time limit for responding to a flexible working request and had not agreed an extension of time with Miss Wilson. Observing that the breach was not serious, for example because the decision was notified to Miss Wilson only shortly after the time limit expired, it awarded her a week’s pay.

Takeaway: This is only an ET decision and not binding. Nonetheless, it shows that an employer can in the right circumstances successfully defend a decision not to agree to an employee’s request to work entirely remotely. The key to the employer’s success was that Miss Wilson’s manager had carefully considered her request and had identified the reasons why there would be a detrimental impact on the quality and performance of Miss Wilson’s work if she worked entirely online.

The case also serves as a helpful reminder that flexible working requests must be considered promptly and within the statutory time limits. If the employer needs more time to respond, then it must agree an extension of time with the employee; otherwise, the employer may face a claim for compensation of up to eight weeks’ pay.

As we have reported previously, there will be some minor changes to the procedure for making flexible working requests which come into effect on 6 April 2024. In particular:

• The right to request flexible working will become a ‘day one’ right – it will no longer be necessary to have 26 weeks’ service in order to be able to make a request.
• Employees will be allowed to present two statutory requests in any 12-month period (rather than one as at present).
• Employers will be required to consult with employees before refusing a request.
• The period within which an employer is required to process and respond to a request will be reduced from three months to two months.
• Employers will no longer be required to explain in their request what effect the change would have on the employer, and how that might be addressed.