Can you require employees to work in the office a specified percentage of the time?

Is it possible to require employees work from the office a specified percentage of time?

It’s not a simple yes or no answer and will depend on all the facts and circumstances, ruled a Judge in the recent employment tribunal case of Wilson v Financial Conduct Authority.

What happened in Wilson v FCA?

For a quick summary of the case, click below:

Whilst this case may possibly at first glance look like a “win” for employers trying to impose a return to the workplace, it’s really not that simple. It’s important to note that:

1. the Tribunal did not licence employers to be able to require staff to attend the office;

2. the case was not about whether a policy mandating office attendance was fair; and

3. the case did not consider whether any mandatory office attendance policy could be indirectly discriminatory on the grounds of for example sex and disability.

The specific legal question that was asked of the tribunal in this case was actually a question regarding the process of a flexible working request namely: whether the employer had rejected the employee’s application for flexible working based on incorrect facts. The employee (who notably had managerial responsibilities and a senior position within her department) contended that the employer’s argument that her working entirely from home would have a detrimental impact on quality and performance, was incorrect.

The Ruling

However, the Judge in this case ruled that:

1. the Financial Conduct Authority (“FCA”) had considered in detail the employee’s request to permanently work from home and;

2. he was satisfied that the FCA’s rationale for refusing the request was not, on the evidence, based on incorrect facts.

Accordingly whilst (i) this is not an appeal case, meaning that another Tribunal is not bound to follow this decision, (ii) it’s a nuanced question on the process of a flexible working request question, and (iii) each case will be decided on its own specific facts, the Judge made some interesting comments that may add fuel to what is likely to be a continued area of litigation.

In particular he found that:

[While many aspects of work] could and no doubt are completed successfully through the use of remote working [there are] weaknesses with remote working...

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

...Similarly there is, as has been identified, a limitation to the ability to observe and respond to non-verbal communication which may arise outside of the context of formal events but which nonetheless forms an important part of working with other individuals....

...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.

Reflection

This case also serves as a useful reminder:

1. that there is no right to demand flexible working, but rather the right is to make a request for flexible working and to have that request fairly considered;

2. that it is important not to consider a flexible working request or policy in isolation. You must exercise caution to ensure that any policy or refusal of a flexible working request would not be discriminatory on the grounds of any protected characteristic.

3. of the need to deal promptly with flexible working requests and in any event within the decision period.

1. 1. Whilst the Judge ruled that the FCA was entitled to reject the request, he also ruled that the FCA had been in breach of the current 3 month time limit to respond to the request, including the decision on any appeal and awarded the employee one week’s pay in respect of this breach.

   2. Given the upcoming amendments to flexible working from 6 April 2024, (learn more) including the reduction of the time limit from 3 months to two month for an employer to make a decision, it’s imperative that you ensure your managers know the process and what to do when they receive a flexible working request.