Employers press for a return to the office

Increasing numbers of employers are now bringing employees back in to the office after what has been an extended period of time where a great number of employees have benefited from home and hybrid working arrangements.Joanna reports on the approach being preferred by employers, and indeed the Employment Tribunal, in what is the fourth anniversary of the Covid pandemic.   

A recent case of Wilson v Financial Conduct Authority (“FCA”) 2302739/2023  was one of the first cases heard in the Employment Tribunal concerning a request made by an employee for a permanent variation to enable them to enjoy a full-time home working pattern, which they had temporarily benefited from during the pandemic.

This case concerned Miss Wilson, who had worked for the FCA since 2005. She had been working remotely from home since April 2020. The FCA later introduced a policy requiring all staff to work in a hybrid fashion, splitting their time 60/40 between home and office.  Miss Wilson made a formal flexible working request to continue working remotely from home on a full-time basis.   The request was refused by the FCA, citing that home working would have a detrimental impact on Miss Wilson’s performance and quality of work.  The FCA went further explaining the importance of face-to-face interactions for business needs and to “foster a team spirit” especially given the fact that Miss Wilson was a senior manager and managed a number of people in her team. Miss Wilson pursued a claim before the Employment Tribunal, arguing that the technology offered and used by her during home working proved to be productive and beneficial to the FCA.  Furthermore, she argued that the hybrid working pattern being sought by her employer meant that she would not necessarily have face-to-face interactions with her reporting team, which was dependent upon their office days coinciding with hers.

The Employment Tribunal judge determined the case in the FCA’s favour and praised the FCA for their careful handling of the flexible working request. The Tribunal were satisfied that there were legitimate reasons for the refusal of Miss Wilson’s request.  The Employment Tribunal did, however, award Miss Wilson compensation equivalent to one week’s pay due to the FCA’s delay in determining the outcome of the flexible working request in the first place.   

Employment Judge Richter also commented on how the case raised key issues for employers in the modern workplace and the need to weigh up the need for a physical presence of staff at an office location, which remains a cause for debate.  The Judge went on to say :

“It is the experience of many who work remotely using technology that it is not well suited to the fast-paced interplay of exchanges that occur in, for example, planning meetings or training events when rapid discussion can occur on topics”

It is worth remembering that, when considering the implementation of a “back to the office” policy, employers should be mindful that there is no express or lawful right for an employee to work exclusively from home, or remotely, except where it is expressly written into the terms of their contract of employment. An employee does however have a legal right to request to work remotely. When responding to a request, there is a duty on an employer to consider the request in accordance with the statutory request procedure which comprises the following:

1. A flexible working request must be put in writing by the employee.  They are entitled to make up to 2 requests in any calendar year.  This right applies from the first day of employment.  As an employer, you should accept the request, unless there is a genuine business reason not to
2. You must consult with the employee before you make a decision.  The final decision must be communicated to the employee within two months.
3. You must consider each request carefully on a case-by-case basis, considering how the change would affect the employee and the business.  By law, you must accept a request unless there is a genuine business reason not to
4. You can only reject a request if its for one or more of the following business reasons :
   1. It is not cost effective or sustainable for the business
   2. The work carried out by the employee cannot be reorganized amongst other staff
   3. There would be a negative effect on the business’s ability to meet customer demand, performance or on the quality of work
   4. There is not enough work for the employee to do on the hours they have requested to work
   5. There are planned changes to the business and the request will not fit with these plans
5. It is important to consult with the employee before communicating your decision.  If the decision is to reject the request then a right of appeal should be offered

For advice on this, or any other aspect of employment law, call Joanna Robson on 01827 317070 or email jrobson@pickerings-solicitors.com.