Why flexibility and rigid rules will not mix in the workplace

Noella Gooden

Article written by Noella Gooden, Employment Lawyer

An Employment Tribunal (ET) 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 6 April 2024.

The case of a 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 Ms Wilson continue to work from home full time post-pandemic.

At first sight, the ruling may look like an endorsement for employers seeking mandatory in-person attendance in the office. However, it is not, and  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.

Ms 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% 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 Ms Wilson could have a detrimental impact on the organisation.

Ms Wilson’s manager listened to the request and did not directly refuse, instead suggesting a compromise level of office attendance of around 10% or 20%, and explained why that was proposed.  The  ET found that this showed a clear, reasoned response to the request for flexibility.

There is no single solution that is applicable for all organisations, or even for all roles within one company, and each request must given due consideration on its individual set of circumstances.

This case also highlighted the need for a clear policy and process for employers to deal with flexible working requests. Flexible working requests must be dealt with, within a set time frame and this case saw the employer penalised for failing to meet the deadline. A flexible working policy should set out who is responsible for making the decision and who might be consulted with in coming to the decision.

Flexible working requests are as relevant as ever, and employees will have the statutory right to request flexible working arrangements from day one of their employment from  April this year.

To discuss flexible working policies or for advice on a specific employment matter, please feel free to email me or contact the team on 020 8858 6971.