Fully remote working — a way forward?

A number of organisations facilitated staff to fully work from home during the covid pandemic. Organisations are now considering a combination of home and office working — hybrid working — and some organisations are insisting that employees return full time to the office.

Employees who have become used to working from home can make a flexible working request to amend the working arrangements, which can include a request to fully work from home.

Such a request was considered by the Employment Tribunal in the case of Wilson v Financial Conduct Authority.

The legal bit

Employees can make a flexible working request for a change in the terms and conditions of their employment which includes a request to work from home. In considering the request an employer shall only refuse the request if it considers that one or more of the following grounds apply:

• the burden of additional cost
• detrimental effect on ability to meet customer demand
• inability to reorganise work among existing staff
• detrimental impact on quality
• detrimental impact on performance
• insufficiency of work during the period the employee proposes to work.

An employee can bring a claim in the employment tribunal if the employer fails to comply with the time limits to consider such a request, or the decision was based on incorrect facts. A final decision, which includes the appeal process, has to be notified to the employee within 3 months unless any extension was agreed between the parties.

Background

The claimant, Miss Wilson, was employed by the Financial Conduct Authority, (FCA), since 2005. Since the beginning of the covid pandemic, the claimant had been working entirely from home. The FCA, like many organisations, introduced a policy to require employees to work in the office two days a week.

The claimant made a flexible working request to work from home full time without ever being required to attend the office location.

The application was considered but refused. The letter refusing the request stated that the reason for rejecting the request was “approving this request could have a detrimental impact on performance or quality of output, as you will not attend face to face training sessions, departmental away days/meetings and will not be able to provide face-to-face training or coaching to team members or new joiners. Your ability to input in management strategy meetings and be involved in in-person collaboration will also be negatively impacted.”

The claimant appealed.

The appeal was rejected on the following grounds “You are a senior member of the department and part of Hannah’s SLT and therefore your performance and output cannot just be viewed through the very linear lens of your own perspective . It also has to be viewed in relation to those that you manage directly and indirectly in your chain of command. I also believe it is reasonable for the FCA to conclude that it would still be better of real benefit to you and in particular, your team and your team’s performance, if they were able to connect with you in person in the office.”

The claimant submitted a claim in the employment tribunal alleging that the FCA rejected her application on incorrect facts. The claimant relied on the assertion that if the claimant worked entirely from home it would have a detrimental impact on quality or performance.

The claimant also alleged that the respondent failed to communicate the appeal outcome within the statutory time frame.

The employment tribunal decision

The employment tribunal held that the decision was not based on incorrect facts. Employment Judge Richter concluded “importantly in my judgement 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.”

The employment tribunal held that the request was not complied within the statutory timescales and held “an employer of this size and with the knowledge and resources of the respondent is clearly well placed to deal with such applications in a timely manager” The claimant was awarded one weeks pay of £643.

Comment

This decision is welcomed by many organisations who are seeking to introduce policies to require employees to return to the office. It should be remembered that each case should be considered on its own facts. Furthermore, there may be other considerations which employers need to be mindful of, for example, reasonable adjustments to accommodate a disability, and caring responsibilities. It is important that organisations ensure that flexible working requests are dealt with in a timely manner, and manager who are responsible for dealing with such requests have been trained on such polices.