What does the future hold for flexible working?

A recent employment tribunal has ruled against a manager who wanted to work entirely from home, sparking discussions about the future of flexible arrangements. Since the pandemic, the rise of flexible and hybrid working has significantly influenced how employers and employees view their work, prompting us to outline what lies ahead for flexible working.

The case of Ms Wilson’s flexible working request

Ms Wilson, a senior manager at the Financial Conduct Authority, like many others, had been working remotely since the start of the pandemic in 2020. Her employer introduced a policy requiring staff to work in the office two days per week. Ms Wilson submitted a flexible working request to work entirely from home, which her employer refused on the grounds that they believed working remotely could have a detrimental impact on her performance. Ms Wilson lodged an appeal, which was also rejected.

Ms Wilson sought to bring a claim against her employer in relation to her flexible working application on the basis that they had made their decision based on incorrect facts. Her claim was, however, quashed by Employment Judge Richter, who ruled that it was within her employer’s rights to deny her request.

Jude Richter’s ruling

Judge Richter stated in her judgment: “It is the experience of many who work using technology that [remote working] is not well suited to the faced-paced interplay of exchanges which occur in, for example, planning meetings or training events when rapid discussion can occur on topics”.

She also pointed to “a limitation to the ability to observe and respond to non-verbal communication which may arise outside of the context of formal events but nonetheless forms an important part of working with other individuals”.

The office presence debate

The need for staff to provide a physical presence at an office location is a debate that many companies are now engaged in, and the solutions will no doubt differ from employer to employer. Whilst Ms Wilson was unsuccessful in her application, this case does not create a precedent it is important to note that each case shall depend on its own facts and circumstances and does not give employers the right to reject a flexible working request without good reason.

Trial periods and rejection grounds

Employers will need to show that they have carefully considered what might work having regard to the nature of the job, the team dynamics and the overall impact of productivity and company culture. It may be sensible to offer a trial period. If this then does not work out, the employer has good grounds to reject the request and request that the employee returns to their normal working pattern.

Legal considerations and discrimination risks

Many claims for flexible working are often coupled with claims of discrimination. Employers, therefore, need to be aware of the legal considerations of asking employees to return to the office and deal with flexible working requests in a fair and transparent manner to minimise the risk of discrimination claims arising.

The evolving legal landscape

This case raises a key issue in the modern workplace and one which is expected to be the subject of continued legal disputes as employers increasingly demand staff to spend more time in the office. Coupled with changes to the flexible working regime, which shall come into force in April, making the right to request a flexible arrangement a ‘day one’ right, employers are likely to receive more applications of this nature.

Adapting to legal changes in flexible working

 The new Employment Relations (Flexible Working) Act also makes changes to the requirements for those submitting a request. Employers will be able to make two requests in each 12-month period. The response time for employers will also be reduced from 3 months to 2. Employers cannot refuse the request unless and until they have consulted with the employee. The employee no longer needs to explain the possible effect on the employer and how this would be dealt with.

If you have any questions or would like support in navigating flexible working applications and the upcoming legal changes or ensuring your business policies are up to date and compliant, please get in touch with the BLHR & Employment Team. We will be happy to discuss how we can help, including under our fixed fee BLHR service.