It has been a couple of years since the pandemic restrictions have ended but many employers are still struggling to get their staff back into the workplace for their required percentage of days. This can be the case even when carrots and sticks are being applied for compliance/non-compliance.

The employment tribunal case reported below (Ms Wilson v Financial Conduct Authority) is an interesting one because the senior employee in question had worked entirely from home during the pandemic. The arrangement was very successful but when she wanted to make it permanent, the employer refused. The tribunal accepted the employer’s reasons, and found it legitimate for the wider business context to be taken into account when reaching the decision.

Why can’t I work from home all the time?

It is a good question because the applicant, Ms Wilson, who was a senior manager at the FCA, was a stellar performer during lockdown, and her feedback stated that “she had built effective relationships with colleagues despite not meeting in person”. When the FCA required managers to be in the workplace for 50% of their time, Ms Wilson submitted a flexible working application for full-time remote working. This was rejected by her employer.

Some roles require physical presence in the workplace

While acknowledging her high-performance track record when working from home, the request was rejected on the basis that the arrangement would have a detrimental impact on performance or quality of output, which is one of the statutory reasons for refusal. Her employer felt that when viewing the wider business context, it was important for a senior manager to:

• have face-to-face training sessions and be involved in in-person collaboration;
• be present at departmental away days/meetings;
• provide in-person training or coach team members or new joiners;
• ensure junior colleagues have a reasonable expectation of interacting with senior managers; and
• have an input in management strategy meetings.

One of the issues for the employment tribunal was whether the FCA based its decision on incorrect facts because it took into account the wider business context.

A template in how to respond to flexible working requests

The way Ms Wilson's line manager handled her request is a helpful guide for best practice. This persuaded the tribunal, even though Ms Wilson seemed like an ideal candidate for the remote arrangement on paper. The tribunal thought that the request was carefully considered, and a qualitative assessment was used before making the decision. The line manager did not ignore the positive aspects of the request, nor did it ignore parts of the role that could be done well from home; these were acknowledged and included in the decision matrix.

Ultimately though, the case is an example of where it is legitimate for the employer to look at the wider business context.

Sex discrimination claims

It is worth noting that this is a very unusual employment tribunal case as it was based only on the rejection of the statutory flexible working request. Almost always, an indirect discrimination claim is bolted on as there is more scope to look behind the reason for the refusal, and it is a more effective remedy for the claimant. An indirect discrimination claim would be framed in terms of the rule to work in the office full-time puts women who have parental caring responsibilities at a particular disadvantage when compared with men.

Take-away lesson

Although as a tribunal case, this will not bind other tribunals, it is nonetheless useful to show that employers can succeed in insisting that employees maintain a physical presence in the workplace where the role justifies this in the context of the business. Here, the responsibilities for supervision, coaching and leadership of a team were compelling. That’s not to say that it would be impossible to refuse junior employees as, along with the statutory reason for refusal, there could be business reasons to support a workplace presence, eg the need to receive hands-on supervision or observe seniors at work.