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Code TAPS2605 - Homeworking

[Policy]

Wilson v Financial Conduct Authority

[Weblink]

Employee denied permanent homeworking loses claim

Flexible working procedural failings

Where you refuse an employee’s statutory request for flexible working, they can bring a tribunal claim alleging that you either: (1) failed to deal with their request in a reasonable manner; (2) rejected their request for a reason other than one of the eight statutory business reasons; or (3) based your decision to reject on “incorrect facts” .

Permanent homeworking request

Ms Wilson (W) is a senior manager for the Financial Conduct Authority (FCA) with responsibility for 14 staff. She worked remotely during the pandemic but the FCA then introduced a policy that employees should attend office locations for 40% of their working time. W submitted a flexible working request for a remote working arrangement but this was refused on the basis that it would have a detrimental impact on performance and quality - these are two of the eight statutory business reasons. The FCA explained that approving the request would mean W wouldn’t attend face-to-face training or departmental meetings and, as a senior manager playing a leadership role, she wouldn’t be able to provide face-to-face coaching to team members or new joiners, which would have a negative impact on the department.

W brought a claim, alleging the FCA’s decision to refuse her request was based on “incorrect facts” - she argued she had already successfully demonstrated she could work remotely.

Claim unsuccessful

W lost her claim. She was in a senior role with managerial responsibilities and that was an important context when considering her request. The FCA had given genuine consideration to her request and had identified a number of real issues, and the tribunal said the FCA was “right to identify weaknesses with remote working” (see The next step ).

Implications

This case doesn’t set a precedent for you to safely decline homeworking requests as each case will always turn on its own facts, depending on the employee’s role, responsibilities and other circumstances. In particular:

• W was a senior manager - the same issues might not arise with non-managerial employees
• W gave no reason why it was necessary for her to work permanently from home - if she had been a disabled employee seeking remote working as a reasonable adjustment or a mother with childcare responsibilities, she may also have been able to bring a disability or indirect sex discrimination claim.

Tip. When dealing with a homeworking request, conduct a proper enquiry into feasibility, make sure your facts are correct, always rely on one or more of the statutory business reasons to refuse the request and have evidence to support your decision.

Tip. You could consider having a trial period first to test the arrangement, or you could look at reaching a compromise on the home/office split.

For the employment tribunal’s ruling in this case, visit https://www.tips-and-advice.co.uk , Download Zone, year 26, issue 5.