As employers continue to struggle with flexible working requests – especially after a rise in requests for home working or hybrid working following the Covid-19 pandemic, the case of Wilson v Financial Conduct Authority (FCA) 2023 emphasises the importance of having clear policies and procedures in place regarding the matter.
Wilson v Financial Conduct Authority – The Facts
Miss Wilson was a senior manager at the Financial Conduct Authority with responsibility for four staff members – and indirect responsibility for ten others. She requested to work from home in December 2022, however this request was rejected based on the negative impact homeworking would have on her team.
In the managers confirmation letter, it stated homeworking could be detrimental on performance or quality of work – even though it acknowledged she had performed well and without incident before. The main concern was an inability to carry out face-to-face training, attend business events, or coach new staff. They also cited her senior position, and the importance of her availability for helping junior staff members.
Wilson appealed this decision internally with unsuccessful results. As such, she issued proceedings in an Employment Tribunal (ET) - citing that the decision was based on incorrect facts.
Wilson v Financial Conduct Authority – The Tribunal
At first instance, the ET rejected her claim that the decision was based on incorrect facts – namely, that homeworking would have a detrimental impact on quality and performance. It was concluded that careful consideration had been given to her request. They found that her line manager had even looked into other business activities which could be impacted by her absence. This included meeting new staff, providing internal training, supervision advice and support, attending conferences and any other events, and more.
The ET recognised that modern IT could facilitate remote working but had limitations in a fast-paced or rapid discussion environment. The manager cited the limitations of dealing with body language or other non-verbal communication within a senior management position. The Tribunal agreed these were genuine factors which could affect the business – even though her prior homeworking activities were well managed.
Wilson v Financial Conduct Authority – The Decision
The Tribunal held that – although incorrect facts were not the basis of the rejection, there was clear breach of statutory time limits. The appeal letter was sent 21 days after the statutory three months expiry period, and this time was not extended. The ET was aware and mindful that the FCA were in the process of reviewing their flexible working policy and issued one-week of pay (£643) by way of compensation. For reference, the maximum payment for this is up to 8-weeks’ pay.
Lessons for Employers on Flexible Working Requests
When dealing with flexible working requests, it is important for employers to note the following:
- Each request must be considered and investigated objectively, taking into account the role, responsibilities, and circumstances in question. A blanket approach should never be taken.
- Objective investigation and critical thought are required to deal with requests because each employee will have different requirements, and the business will be affected in varying ways.
- Always consider alternative arrangements – such as hybrid working policy under which staff working time can be shared between home and office based working.
- From April 2024, legislation will require employers to consult employees before rejecting the request. According to the revised ACAS Code of Practice, there must be a formal consultation meeting which needs to include alternative options and trial periods.
- Employers must have a clear policy to deal with flexible working requests within strict time constraints. Such a system can only be effective if line managers are trained on the subject. In this case, the line manager had confessed that delays were caused by lack of knowledge and experience.
- Applications must be dealt with swiftly, and – the larger the organisation, the greater the expectation they will have clear policies in place to deal with them in a timely manner.
- From April 2024, flexible working becomes a day-one right, with two application requests permitted per staff member each year.
Professional HR Guidance from the Experts
This article is for educational purposes only and does not constitute professional legal advice. If you need assistance with grievances, disciplinaries, contracts, or any other employment matters, please do not hesitate to contact the Quest Advice Line Service for FREE on 0116 274 9193.
