Since the easing of restrictions and the end of the pandemic, we are seeing a great change in the workplace landscape and working environment. For many employers, a new hybrid way of working has been established and maintained for their staff, for others they are contemplating a return to the office in some capacity which can be met with some resistance as the quest for flexible working is sought by many.
The ’need’ for a physical presence in an office is up for debate by many and as we advise our clients, these have to be reviewed on a case-by-case basis. In the absence of a great deal of case law, we are now seeing the start of an anticipated wave of claims at Tribunal.
Most recently, an employee of the FCA has lost at tribunal after raising a claim against her employer for refusing her flexible working request to work entirely remotely from home.
The Claimant had been working from home since the beginning of the pandemic due to health reasons. They wanted to make this arrangement permanent after the FCA implemented a policy that staff were required in the office 2 days a week. They subsequently raised a flexible working request.
Under the terms of the Employment Rights Act 1996, an employer can only refuse such an application on the grounds of detrimental impact on work quality and/or performance. It is necessary to elaborate that this can’t be a blanket statement, an employer has an obligation to appropriately substantiate the reasons and provide examples as to why this is the case.
The Claimant put forward that she had continued to be a high performer working remotely and therefore working in the office was not necessary.
The FCA refused the request. Whilst the employer acknowledged the claimant had worked well remotely, it explained that in her senior position (managing a team) approving the request would have a detrimental impact on performance due to her absence from on site meetings, training sessions, away days and would have an impact on the benefits of in personal collaboration.
The Judge ruled in favour of the FCA, and found the employer had genuinely considered the merits of the request.
As always, as an HR consultancy our aim is to provide our clients with practical, commercial advice. We need to protect their business but also ensure we help them attract and retain the best talent. We believe it is in the best interests of our clients, to provide so far as is reasonably practicable, a flexible working structure that meets the needs of their people as well as their business. Finding the right balance is key.
We expect to see many more cases like this reach tribunal and have no doubt that not all rulings will follow suit.
For practical advice in how to ensure compliance, and communicate effective policies within your organisation, please get in touch with the office on 01932 830664 or email hrservices@wardwilliams.co.uk.