What HR leaders can learn from the FCA's rejection of a flexible working request

In the wake of the recent Financial Conduct Authority (FCA) case, where a senior manager’s request to work entirely from home was rejected, HR teams are left contemplating the implications for their own flexible working policies.

The verdict, while not setting a binding precedent, offers valuable insights into how companies should handle flexible working requests in the evolving landscape of hybrid work.

Elizabeth Wilson, a senior manager at the Financial Conduct Authority, lost her claim after her request to work from home full time was rejected.

During the tribunal, she claimed that because she had continued to be a high performer working remotely, she should be able to continue to do so even though the regulator had instituted a policy of asking employees to return to the office two days a week.

The FCA’s argument hinged on the fact that the employee’s full-time remote work would negatively impact her ability to effectively manage her team and reduce in-person collaboration.

The tribunal found that the FCA had legitimate reasons to require some office attendance and that the employee’s already high standard of work would be enhanced by doing so.

This case underscores the importance of individual assessment of flexible working requests.

New legislation poses questions

Under new legislation released by the UK’s government earlier this year, each request should be evaluated based on the individual’s role, responsibilities, and circumstances.

A blanket approach to responding to requests could potentially lead to unfair rejections.

When considering a request, employers should also explore alternative working arrangements. In the FCA case, the employer suggested an alternative arrangement where the employee came into the office some of the time, but less than the 40% requirement.

However, the details of these discussions were not documented, highlighting the need for employers to record all discussions related to flexible working requests.

Will women be more adversely affected?

The FCA case also brings to light the potential for discrimination claims.

In many flexible working cases, requests are made to facilitate childcare or to support an employee coping with matters associated with a disability. In such cases, a requirement to work full time from the office might lead to indirect discrimination claims.

Therefore, careful consideration of a request is crucial so that employers can robustly defend any refusal on the basis that it is justified as a proportionate means of achieving a legitimate aim.

Moreover, the case emphasizes the importance of timely communication. The FCA was found to have breached the statutory time limit for communicating the refusal of the request, resulting in a compensatory award to the employee.

When will a precedent be set?

In his judgment, employment judge Robert Richter indicated that future tribunals involving flexible and hybrid working requests would be considered on their own merits, adding that the case “raises a key issue in the modern workplace and which will, no doubt, be the subject of continued litigation”.

As the landscape of work continues to evolve, HR teams must navigate the complexities of flexible working requests with care.

The FCA case serves as a reminder that each request must be considered individually, with a focus on open communication, documentation, and a careful balance between the needs of the employee and the business.

HRD Connect Curators of the New Business Landscape. HRD Connect produces industry-recognized content for senior HR leaders. Through articles, case studies, Q&As, podcasts, events, and more, we offer truly progressive and cutting-edge insights designed to help people leaders address core HR challenges and add greater value to their business.

Share