Can you legitimately turn down an employee's request to work exclusively from home?

Over the last 12 months or so, we’ve seen a real push to get staff back into their physical workplaces following the pandemic. That hasn't suited everyone and we are starting to see issues around home working v working in the office playing out in employment tribunals. 

In Wilson v Financial Conduct Authority, a long serving manager, earning £140K per annum brought a claim against her employer after it turned down her request to continue to work exclusively from home. 

Facts

Miss Wilson began working for the FCA in 2005. Her contract provided that her usual place of work was the office. However, during the pandemic she was allowed to work from home for “health reasons”. 

Following the easing of the pandemic, the FCA reviewed its working practices and settled on a policy that staff should attend office locations for 40% of their working time and could work remotely (including at home) the rest of the time. Senior managers were expected to work at least half of their working week in an office. 

Miss Wilson applied for a change in her terms of employment to work entirely remotely. Her line manager acknowledged that Miss Wilson “performed very well during the period when she has worked from home and … built effective relationships with colleagues despite not meeting in person” but, nonetheless turned down her application. She believed the arrangement could have a detrimental impact on quality and performance and also was concerned that Miss Wilson would not be able to attend face to face meetings, training sessions, events or provide leadership to her team. 

Miss Wilson appeal was rejected and she issued a claim in the tribunal, alleging that the FCA had failed to comply with the Flexible Working Regulations 2014 and had rejected her application based on incorrect facts.

Relevant law

The Flexible Working Regulations 2014 implement sections 80F to 80I of the Employment Rights Act 1996, which give qualifying employees the right to apply for a change in their terms and conditions of employment, such as working hours, location, or pattern.

You must deal with an application in accordance with the procedure set out in the regulations, and can only refuse it if you can establish one or more of the following grounds:

• the burden of additional costs
• inability to reorganise work among existing staff
• inability to recruit additional staff
• detrimental impact on quality
• detrimental impact on performance
• detrimental effect on ability to meet customer demand
• insufficient work for the periods the employee proposes to work, or
• planned structural changes

The employee can present a complaint to an employment tribunal if you fail to comply with the regulations or have relied on incorrect facts when turning it down. The tribunal can order you to reconsider the application and/or make an award of compensation to the employee of up to eight weeks’ pay.

Decision

The tribunal found that the FCA had breached the regulations by failing to notify Miss Wilson of the appeal outcome within the three-month decision period and awarded her one week’s pay in compensation for the breach. 

But it rejected the substantive claim. FCA had not based its decision on incorrect facts and had given clear and cogent evidence to support its decision. It had genuinely considered the individual merits of Miss Wilson's application and had assessed these appropriately. 

The tribunal accepted FCA's evidence that, as a manager, Miss Wilson needed to attend in-person meetings and events and acknowledged that could not be achieved in the same way through remote working. The judge's actual comments may provide some comfort for other employers grappling with similar issues. 

 “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.

“Similarly, there is, as has been identified, a limitation to the ability to observe and respond to non-verbal communication that may arise outside of the context of formal events but which nonetheless forms an important part of working with other individuals. This is particularly so when considering the senior position held by the claimant."

Our view

Although this case isn't binding on any other court, it raises a key issue in the modern workplace and, as the judge opinioned, we are likely to see other cases litigating the same issues.  

That said, the facts are quite extreme. Miss Wilson appeared to not want to come into the office at all, claiming that technology allowed her to interact with her colleagues and work effectively. The tribunal made it very clear the employer had legitimate reasons to require some attendance and that her already high standard of work would be enhanced by doing so. 

Had she been more flexible (excuse the pun) and agreed to come into the office to attend face to face training and to coach and manage junior staff, the outcome might have been different (and it’s possible that her employer would have agreed to it as a compromise).

How to respond to an application to work from home

It's not usually that difficult to lawfully reject applications for flexible working, provided you don’t do so out of hand and carefully consider what might work. In most cases it is sensible to offer a trial period, then if that doesn’t work out in the way you anticipate (or hope) you have good grounds to reject it and ask the employee to return to their normal working pattern. 

However, you do have to jump through the hoops set out in the regulations and, in particular, ensure that you conclude the process within the time limits imposed (which are currently three months, but will go down to two months in April - see below). That includes concluding any appeal. 

Many people whose requests are turned down also bring claims of indirect discrimination which are much harder to defend. For example, it’s common for working mothers whose applications are rejected to argue that this amounts to indirect sex discrimination. Appeal courts have accepted there is a childcare disparity, which is likely to result in group disadvantage to women with childcare responsibilities. 

You may also have to think about how you can objectively justify any policy which indirectly discriminated against women (or any other protected group). If you can achieve the same objective in a less discriminatory way, you'll be expected to take that option.

The claimant in this case didn’t raise indirect discrimination as an issue.

Flexible working rules are changing in April

The flexible working regulations are changing soon and you may start to receive more applications from staff pushing back against requirements to spend more time working in the office. 

From 6 April 2024 employees will be able to make a flexible working request from the first day of their employment and up to two requests each year. You'll have to deal with applications (and any appeals) within two months but will still be able to turn down requests if you have a business reason for doing so on the same grounds as currently exist. To find out more about these changes, please click here. 

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