Following the coronavirus pandemic, many employers embraced hybrid working. Although return-to-work requirements varied, a common minimum request was for employees to spend two or three working days per week physically in the office. Throughout last year, many employers started to take a tougher approach to office attendance, either increasing the amount of working time employees must spend in the office or taking a firmer stance enforcing existing expectations. This remains a top priority for 2024.
Many employers anticipated (and experienced) a surge in flexible working requests when initially asking employees return to the office following the pandemic. Although upcoming changes to the flexible working regime are far from groundbreaking, they may still result in another uptick in requests. As employers continue to prioritise a return to office, responding to requests to work remotely continues to be a challenge for employers.
The key legislative changes to the UK flexible working regime which will take effect from 6 April 2024 are:
Separate regulations also make the right to request flexible working a ‘day one’ right, removing any need for qualifying service.
Importantly, the wide-ranging reasons why an employer can refuse any request will remain unchanged. Employers must rely on one (or more) of eight statutory business reasons, including a detrimental impact on quality or performance, to refuse a request.
Earlier this month, the Advisory, Conciliation and Arbitration Service (Acas) published their revised updated statutory Code of Practice on handling in a reasonable manner requests to work flexibly. For example, the Code now recommends that, where a request cannot be accepted, employers should discuss with the employee alternatives to their request and consider use of a trial period. The Code also now expressly states that, although employees don’t have a statutory right to appeal a decision, it is ‘good practice’ to allow them to and that organisations of all sizes should assign a different manager to handle any appeal.
Employers continue to grapple with how to respond to flexible working requests for home-working in the post-pandemic world of hybrid working. Where employers allow some element of home-working, how can they justify refusing a request from an employee who wants to work from the office, say, only one day a week? Or who wants to work entirely remotely?
These issues have recently been considered by the Employment Tribunal (ET) in a recent claim against the Financial Conduct Authority (FCA). Once Covid restrictions eased, the FCA requested that all staff should attend an office location for 40% of their working time. The remaining 60% of hours could be carried out remotely. The claimant was employed by the FCA as a Senior Manager. The claimant directly managed four employees and indirectly managed a further ten. She made a request to work entirely from home on 9 December 2022.
The FCA rejected the claimant’s request because of the negative impact her requested working arrangement would have on her team. In a letter confirming their decision to the claimant, the claimant’s line manager stated that working from home ‘could’ have a detrimental impact on performance or quality of output. Although it was acknowledged that the claimant had performed well whilst working from home and had built good working relationships with colleagues, the line manager had concerns about the claimant not being able to carry out face-to-face training sessions, attend away days or coach new employees. The FCA also referred to the claimant’s ‘vital leadership role’ as Senior Manager and the importance of junior colleagues being able to meet senior managers in person.
The ET dismissed the claimant’s claim that her flexible working request had been rejected based on ‘incorrect facts’, namely that working entirely from home would detrimentally impact quality and performance. The ET found the claimant’s line manager had carefully analysed the factors for refusing the claimant’s request and that it had not been based upon incorrect facts.
In addition to the reasons set out above, the line manager was found to have assessed a number of duties which would be detrimentally impacted if the claimant’s request was accepted. These included meeting and welcoming new staff members; providing internal training, supervision, ad-hoc advice and support; attendance at in-person events, conferences and planning meetings; and attending the ‘Department Day’ where the management team would present topics to the department (ideally in a ‘market stall’ layout) and spend the day together.
The ET recognised that in the modern workplace, good technology can allow people to work together across different locations. However, they also acknowledged that remote attendance has weaknesses when there is a ‘fast paced’ exchange or ‘rapid discussion’, for example in training events or planning meetings. The ET also noted the limitations of observing and responding to non-verbal communication and body language outside of formal events (which was particularly relevant given the claimant’s senior role). The ET agreed that these were all factors which could result in a detriment to the quality and performance of the claimant’s work, notwithstanding her previously good performance.
Although the claimant was not successful in arguing that the FCA’s rejection had been based on incorrect facts, the ET held that there had been a clear breach of the statutory time limits for making a decision on the request. The appeal decision letter had been issued 21 days outside the ‘strict’ statutory three-month time limit and an extension had not been agreed between the parties. The ET was mindful that the FCA were considering their flexible working policy and awarded one weeks’ pay by way of compensation. (The maximum award permitted is eight weeks’ pay.) Part of their reasoning for only awarding one week’s pay was that it was clear the claimant’s request was being considered and that the final decision was notified shortly after the expiry of the statutory time limit.
Although Tribunal decisions are not binding, this decision may nonetheless be welcomed by employers as they seek to push for greater mandatory attendance. There are a number of practical take-away points for employers:
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