Paul Fursman
Employment Advice
Why flexibility and rigid rules won’t mix in the workplace
An employment tribunal ruling against a request for home working does not open the way to enforced attendance by employers looking to get staff back to the office. Instead, employers should be looking to ensure they are as considerate as possible in their approach, and be ready to consider flexible working requests from day one of employment contracts from April this year.
The case of senior manager Elizabeth Wilson was one of the first to consider hybrid working policies introduced by the pandemic. It involved a challenge to her employer, the Financial Conduct Authority (FCA), over its refusal to let Wilson continue to work from home full time post-pandemic.
Wilson asked to work from home full-time when the FCA moved into a post-pandemic hybrid working model, which required staff to spend at least 40 per cent of their time working in the office. A long-standing employee, she pointed to her exemplary record from the start of the pandemic and argued that she did not need to go to the office to manage her team, saying she could do this online.
The tribunal was looking at a specific point of law, which was whether the decision was based on ‘incorrect facts’. It found in favour of the FCA, agreeing the decision had been based on correct facts and that the organisation had given genuine consideration to the application and provided specific reasons as to how full-time home working by Wilson could have a detrimental impact.
Esther Marshall, Member, Solicitor and specialist in employment law, said:
“At first sight, the ruling could look like an endorsement for employers seeking mandatory in-person attendance in the office. It’s not that, rather it reinforces established principles – which are that each flexible working application must be considered on its own merit and that employees must be able to access a clear process to make such requests.
“Her manager listened to the request and did not directly refuse, instead suggesting a compromise level of office attendance of around 10 or 20 per cent, explaining why that was proposed. This shows a clear, reasoned response to the request for flexibility, which is vital.
“As the judge said in this case, there is no single solution that is applicable for all organisations, or even for all roles within one company. Employers need to be up to date on latest legislation too, as employees will have the statutory right to request flexible working arrangements from day one of their employment very soon. That comes into force from 6 April 2024.
“Blanket approaches to office attendance requirements will not work: there can be a policy, but companies must recognise they can’t refuse to deviate from it without giving due consideration to individual cases.”