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Category: Flexible working
Employer legitimately rejected employee’s request to work from home
An employment tribunal has found that the Financial Conduct Authority (FCA) legitimately rejected a senior manager’s flexible working request to work exclusively from home.
Background
The employee, who led a team of 14, started working from home for health reasons shortly before the Covid-19 pandemic. Post-pandemic, the FCA introduced a policy requiring all employees to spend at least 40% of their working time in the office. The employee made a flexible working request to work from home exclusively – the request was rejected on the basis it would have a detrimental impact on her performance.
The employee brought a claim on two grounds – the first being that the request wasn’t dealt with in the required time limit, and the second being that the FCA relied on incorrect facts relating to her performance. The tribunal found the FCA had genuinely considered her request and was entitled to reject it (but awarded one week’s pay for a minor breach of the time limit requirements).
Practical takeaways
Performance – when rejecting flexible working requests on performance grounds you need to be able to show clear and consistent performance metrics and expectations (and document your reasons for rejecting). The tribunal noted that there were specific elements of the employee’s role that were performed well from home, but that didn’t mean they couldn’t be delivered better in person.
Time limits – the time limit to respond to a flexible working request is currently three months (including any appeal), but, from 06 April 2024 this will be reduced to two months meaning any requests will need to be dealt with promptly. A tribunal can award up to eight weeks’ pay for failure to comply with these time limits.
Fact-specific – the tribunal noted that every request will turn on its own facts so this decision shouldn’t be taken as meaning all requests to work from home can be turned down without the appropriate level of consideration and justification.
This update is accurate on the date it was published, but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.
Changes to flexible working requests
The Employment Relations (Flexible Working) Act 2023 was supposed to make requesting flexible working a day one right. We’ve just heard that’s now not the case (yet).
Employees will still need to have 26 weeks’ service before they’re able to make a request. However, the Act does bring in several changes to how you manage requests.
What’s changing?
- Employees can make two flexible working requests each year (instead of just one);
- You have to deal with requests within two months (instead of three);
- You need to ‘consult’ with employees before refusing a request – unhelpfully, no definition of consultation has been provided at this stage;
- When making a request, employees are no longer required to explain how any challenges resulting from their proposed flexible working arrangement should be dealt with.
What’s not changing?
- Employees still need 26 weeks’ service before making a flexible working request. However, we expect the day-one right to come at a later stage through secondary legislation;
- The Act won’t introduce a legal right to appeal if a request is rejected (although ACAS recommend doing so in their Code of Practice on handling flexible working requests).