26 January 2024

A manager working for the Financial Conduct Authority (FCA) and earning around £140,000 per year submitted a flexible working application under s.80F of the Employment Rights Act 1996.

The Act says an employer can refuse an application on one or more of eight specified grounds. These include detrimental impact on work quality and detrimental impact on performance.

Miss Wilson sought a change to her terms of employment to enable her to work entirely “remotely”. She had been working entirely from home since the beginning of the Covid pandemic in 2020 but was aware of a trial period as the pandemic ended when staff were expected to return to working from the office before the FCA decided to require 40% office attendance.

When the Authority refused her application, Miss Wilson denied that face-to-face working was better than remote alternatives and claimed that the FCA had excellent technology and that many of the suggested disadvantages were not real.

She was told by her line manager, Hannah Lipscombe-Mitchell: “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.”

Miss Wilson took the matter to the tribunal after her request, and a subsequent appeal, were rejected. Full details of the tribunal hearing can be found here.

Employment Judge Judith Richter ruled against Miss Wilson, noting that the case concerned a “key issue in the modern workplace and which will no doubt be the subject of continued litigation”.

It is, she continued, the experience of many who work using technology that it is not well suited to the fast-paced interplay of exchanges that occur in, eg planning meetings or training events when rapid discussion can occur on topics.

The judge took account of Miss Wilson’s senior position: she has management responsibilities for 14 staff, being the direct line manager of four and indirect line manager for 10.

“I find as a fact that Miss Lipscombe-Mitchell did seek to genuinely consider the individual merits of the application as opposed to simply seeking to enforce the respondent’s attendance policy,” she concluded.

Legal experts have emphasised that the ruling does not create a precedent and that similar requests must be taken on their merits and decided on a case-by-case basis.