Judge rules FCA entitled to refuse full-time remote working request

A woman who launched a tribunal claim after her request to work from home full time was rejected has lost her case. The decision in Miss Wilson v Financial Conduct Authority has attracted a lot of media attention as one of the first to consider hybrid working policies since the pandemic. We’ll look at what it means for employers looking to enforce their ‘back to the office’ policies. 

The FT covers the case, which was brought by Miss Wilson, a Senior Manager at the FCA. She had already been working remotely since the start of the pandemic in early 2020 but following the FCA’s implementation of a policy which required staff to split working time 60%/40% remote/office, she requested a formal change in her employment terms to enable her to work entirely remotely. After careful consideration of the application by her manager, the request was refused on the basis that working from home entirely may have a detrimental impact on her performance and quality of work, two of the grounds listed in the Employment Rights Act as potentially legitimate reasons for refusal. Miss Wilson’s manager, who was praised by the judge for her careful and thorough handling of the application, explained the importance of face-to-face interactions for training, supervision, department needs, and fostering a team spirit which, she argued, was particularly important given Miss Wilson’s seniority and the fact that she managed a number of people.

The judge’s comments are worth highlighting and they’re reported by People Management. Judge Richter says: “This is a case that raises a key issue in the modern workplace and which will no doubt be the subject of continued litigation. The need for staff to provide a physical presence at an office location is a debate that many companies are now engaged in and the solutions arrived at will no doubt differ considerably from employer to employer.” She goes on: “Importantly, in my judgment at the moment 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. It is the experience of many who work using technology that it is not well suited to the fast-paced interplay of exchanges that occur in, for example, planning meetings or training events when rapid discussion can occur on topics.”

Since the case was reported, we have had queries from a number of clients asking what it means for their ‘back to the office’ policies. Earlier, I spoke to Anne Sammon who highlighted a key point about this case which isn’t obvious from some of the media coverage, the fact that this case did not include an indirect discrimination claim which is a claim we often see brought along with the ERA claim:

Anne Sammon: “This case is quite interesting because it's the first one that we've seen where an employment tribunal has really considered the issue of someone who is requesting to work permanently from home and a lot of clients got very excited about this and said, oh, this enables us to kind of implement some more stringent policies around office requirements. The danger with this case is this was only about a flexible working request and it wasn't about indirect discrimination. Had it been about indirect discrimination, the test that the tribunal would have had to apply when it was looking at the refusal by the FCA to allow the flexible working would have been quite different and, therefore, there's a slightly higher threshold in terms of objective justification if you're looking at an indirect discrimination claim to if you're looking at a claim under the Employment Rights Act to do with flexible working where it's more about, has the employer considered the request, have they followed a proper process, and there is less consideration of the impact that that has on an individual in the way that you would if you were looking at objective justification.”

Joe Glavina: “In what way is the approach different if you’re looking to objectively justify a refusal to grant a flexible working request?” 

Anne Sammon: “There is a slightly different set of factors that you'd be looking at if you're looking at objective justification. You'd be looking at things like is there a different way that they could have achieved the same aim of having people in the office to do the particular tasks that this individual was needing to do? You'd also be looking at, for example, whether there was somebody else in the team that maybe you could have shifted things around too. So, my view would be that there's a slightly higher threshold if we were looking at indirect discrimination to the threshold that the tribunal had to apply here. Here, it's very clear that there had been consideration of why the request should be rejected, and that was done in a rigorous way, but that rigour would have been subject to different considerations if we were looking at objective justification.”

Joe Glavina: “One of the reasons this case attracted so much press attention is because lots of employers at the moment are looking to bring staff back to the office with policies requiring 40%, 50% 60% office attendance every week. In light of this case, can employers proceed with those policies?” 

Anne Sammon: “So, I think employers can still proceed with those policies. I think what you need to be thinking about very carefully is your justification for why you're applying those policies and also the cases where you might be willing to make exceptions. So, what we quite often see, particularly when it comes to indirect discrimination issues, is a client will have a policy and so the individual will be able to establish that there is that provision, criterion, or practice that disadvantages them and it does all come down to is there an objective justification for what the employer has done? One way of kind of getting around some of the issues with objective justification is to show that you don't have a blanket policy of just refusing everyone's flexible working request. So, the process of going through a flexible working request and considering it, deciding why the particular role that the individual does is one that you have to be in the office to do, rather than just taking that blanket approach. The way that I tend to think of it is you have your blanket approach that says this is what we want all employees to do but then when you have an employee who raises an issue, whether that is through a flexible working request or any other route, you then have to kind of probe into what is it about their role that means that it's appropriate for us to apply that policy in the way that we would normally do and that's where you get into all of those things about well, is this role one that is standalone where the employee isn't talking to anybody else in the office because they're doing something very unique? Or is it one where, actually, like in this particular case with the FCA, there are requirements to have in person meetings and, therefore, not being able to do that has a disadvantage for the employer?”

Joe Glavina: “One of the factors at play in this case seems to be the seniority of claimant, Miss Wilson. How much weight do employers need to give to an employee’s seniority?”

Anne Sammon: “I think that's a really difficult question because it does depend organisation to organisation what's appropriate but we've definitely seen some firms who are being more rigorous with the way that they require managers to come in on the basis that those are the people who need to supervise, who needs to be accessible when there are difficult questions that come up whereas for some of the more junior staff that might be different. I suppose the counter to that is, potentially, I have seen some organisations that have equally taken the view that, actually, it's more important that the junior staff are in on a more regular basis so that they can learn through other people and kind of get that experience and embrace the company's values in a way that maybe their senior people don't need to.”

Joe Glavina: “It’s interesting that the judge in this case refers specifically to the employer’s IT systems. Some employers have very good IT which facilitates home working – and, indeed, the FCA has very good technology - but nonetheless in some situation there’s no substitute for being physically present in the office. How important is that in your view?”

Anne Sammon: “I think it's really important, and I think this is one of the differences pre and post pandemic, I think pre pandemic, some of this technology just didn't exist in the form that it does now and, therefore, there was a real kind of period of enablement so that people could work from home during the pandemic and I think when you're looking at flexible working requests it's really important to consider that context. That's why a lot of the issues that we're seeing come up are about, well, why does this person need to be in the office from a kind of collaboration perspective, or are actually kind of meeting people perspective, rather than what you might have seen pre pandemic which was, there are elements of the jobs that you can't do because you can't access the systems in the way that you maybe can now. So, I think it's just making sure that when people are considering flexible working applications they are considering the fact that actually the technology now is so much better than it ever has been and, therefore, that might not be a rationale for saying no to somebody.”

Joe Glavina: “Final question, Anne. The claimant’s line manager was praised by the judge for the way she handled the request and the fact she had contemporaneous notes to back up her decisions. How important is that?”

Anne Sammon: “I think it's really important that there is evidence to show why, and how, you've considered a request and I think it's one of the reasons that, actually, where you have a policy as an employer that says somebody has to come into the office a certain number of days, and someone isn't adhering to that, I think it's actually quite helpful to push them down the flexible working route and that's because as part of that route, you start to apply some of that rigour. What is it that they're asking for exactly? Why do they think it can be accommodated and why does the business disagree with that? That allows you to have that dialogue so that you can kind of test the issues and create a really strong rationale if you're going to reject someone's request which, if you're litigating in the employment tribunal, you've then got that evidence from the relevant period rather than trying to invent it at the point at which you're filing a defence to a claim.”

If, like many employers, you have a hybrid working policy then be aware that there is an important distinction between that arrangement and flexible working. The two are conceptually very different and that is a point Anne has made previously in this programme. If you’d like to watch that programme you can - it’s available for viewing from the Out-Law website. That’s ‘Hybrid and flexible working ‘conceptually very different’ and we have put a link to it in the transcript of this programme for you.

LINKS
- Link to HRNews programme: ‘Hybrid and flexible working ‘conceptually very different’