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The Employment Tribunal has delivered an important judgment dealing with the question of whether staff can be compelled to return to the office. This is a timely case with many employers now looking to move away from arrangements that were made during the COVID-19 pandemic. It is of particular interest as the law in respect of flexible working requests is about to change (see our previous article ‘Revised Acas Code of Practice for Flexible Working‘).
28 March 2024
Case Study
In Wilson -v- Financial Conduct Authority, Ms Wilson was a senior manager who directly managed four employees and oversaw a further ten.
Following the arrangement to work from home during the pandemic, she made an official flexible working request in December 2022 to maintain this 100% work-from-home arrangement. Her employer had specified that all staff should attend the office for 40% of their working time. The remaining 60% of hours could performed remotely.
In dealing with her flexible working request, it was acknowledged by the employer that the employee had performed well working from home and had formed good relationships. However, they rejected the request because of what they saw as the negative impact it would have on the team.
The outcome letter stated that her request could have a “detrimental impact on performance or quality of output” (i.e. one of the statutory grounds for refusing a request). Specifically, her line manager had concerns about the need for face-to-face training sessions, attendance on away days and the need to coach new starters. Hers was considered a vital leadership role and the need for junior colleagues to access her support was paramount. Her request was rejected and she brought a claim before the Employment Tribunal.
Case Study
The Employment Tribunal dismissed the claim and found the line manager had carefully analysed the facts before refusing the request. There were significant aspects of the role that were identified such as welcoming new starters; providing internal training; supervision; advice and support; attendance at in-person events, conferences and planning meetings; and team meetings.
Although the Employment Tribunal did recognise that modern technology can allow people to work together across different locations – we have come a long way in just a few years in this respect – they also accepted the weaknesses in remote working, particularly in relation to certain specific roles. They therefore 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 during the initial work from home period.
This is an interesting case – but it is only at Tribunal (and not higher) level. It might be helpful for employers pushing for a return to the office, particularly in certain types of roles. However, every flexible working request should be considered on its individual facts/merits and a blanket ‘no’ must be avoided. In addition, alternative arrangements should always be considered.
It would appear that this employee only wanted 100% home working, which does make it an unusual case. The new rules will mean that an employer has to do more to ‘consult’ with the employee over the request, and must also be mindful of the new shorter timescales for confirming a decision.
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