FCA’s hybrid working policy stands up to flexible working challenge

The employment tribunal has dismissed a flexible working claim brought by a senior manager who had made a request to work from home 100% of the time. The fact that she had been able to do her job entirely remotely during the pandemic did not prevent her employer from concluding that the quality of her work would be improved if she attended the workplace 40% of the time, in line with its hybrid working policy.

The tribunal decision states that Wilson has been employed as a senior manager by the Financial Conduct Authority since 2005, under a contract which provides that her normal place of work is a physical office location. She is currently earning around £140,000 per year, but is not part of the Senior Management structure. She has line management responsibilities for 14 staff.

During the pandemic, in common with most office workers, she worked exclusively from home. Following the lifting of restrictions, the FCA reviewed its working practices and established a policy that staff should work 40% of their contracted hours in a physical office. Senior leaders (which did not include Miss Wilson) were expected to be in the office for 50% of their working time.

Miss Wilson's flexible working request was considered at a meeting in February 2023. The decision letter acknowledged that Miss Wilson had performed well during her period of remote working but went on to refuse her request for the following reasons:

“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 you 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…..This is particularly felt as you are a Senior Manager and play a vital leadership role for the department.”

Following the rejection of her appeal against this decision, she brought proceedings in the employment tribunal under the flexible working legislation. She argued that her employer’s decision to reject her request, because it would have a “detrimental effect on quality and performance”, had been based on “incorrect facts”.

The tribunal dismissed her claim. It concluded that there was enough evidence to support a decision that working partly in the office would have a positive effect on the quality and performance of her job, notwithstanding the high standard of her work when working remotely. It highlighted three aspects of her job which it was persuaded could not be done as effectively remotely:

• Internal training and supervision
• Attending in person events and planning meetings 
• Attending weekly meetings when information was shared by senior managers

This is believed to be the first employment tribunal decision where the experience of remote working during the pandemic has been considered in the context of a flexible working request seeking a permanent move to 100% remote working.

The employment judge was aware of the significance of the ruling and commented as follows:

The need for staff to provide a physical presence at an office location is a debate which many companies are now engaged in and which the solutions arrived at will no doubt differ considerably from employer to employer, there will not be one solution which will work for all companies or even for all roles within a company. There is at the heart of many of these considerations a ‘qualitative debate’ as to whether face to face or virtual contact is better. Ultimately it may be the case that each situation requires its own consideration.

In other words, each request needs to be considered on its own merits. In this case, not only was the claimant a senior manager, but the duty to make reasonable adjustments was not engaged. In addition, it seems that the FCA had been prepared to discuss a reduction in the percentage hours she was required to attend the office, but this was not an option that the she had wanted to explore before formalising her request.

Employment tribunal decisions do not create binding precedents, but this case is bound to inform the approach of future tribunals when considering similar requests.