Professional April 2024

REWARD

Not all flexible working requests have to be accepted

Danny Done, managing director, Portfolio Payroll, provides insight into a recent employment tribunal (ET), to highlight the importance of examining the reasons behind why a flexible working request has been refused

F lexible working continues to be high on the agenda and given the April 2024 changes, it seems like it will stay there for some time to come. When any flexible working request is denied, the reason for refusal will always be the crux of the case, as we see here when the reason for refusal was tested at an ET. The right to make a flexible working request Eligible employees can apply for a change in the terms and conditions of their employment, including a change in where they’re required to work. Employers can refuse such a request, if that refusal falls within one of the eight reasons provided in statute. Relevant to this case, Wilson v Financial Conduct Authority, those reasons include a detrimental impact on performance and quality of work. If an employee isn’t satisfied with the process followed by their employer or the outcome, they can bring a claim before an ET. These claims include where the employer has failed to deal with the process within the statutory decision period and where the employer’s rejection of a flexible working request was based on incorrect facts. The facts The claimant had been working entirely from home since early 2020 due to Covid-19. After the respondent asked staff to return to the office two days a week, the claimant submitted a flexible working request asking to work remotely every day. In her request, the claimant stated that she was a high performer working this way. In the organisation’s response, the claimant’s line manager acknowledged that she had performed well while working from

home and had been effective at building relationships with colleagues despite not meeting in person. Nevertheless, the manager relied on the statutory reason of a detrimental impact on performance and quality of output to reject the request. This was because she would miss: l face-to-face training sessions l departmental away days l meetings. She would also not be able to effectively coach new team members, and as a manager with a team of four, her ability to input into managerial strategy and engage in collaboration with colleagues would also be negatively impacted. The claimant appealed but this was also rejected on the basis that it would be of ‘real’ benefit to her and the team’s performance if they were able to connect face-to-face in the office. The claimant brought claims alleging a breach of the flexible working process because it went over the statutory decision period, and that the outcome relied on incorrect facts. The ET The ET found that the process was concluded 21 days after the statutory decision period, and so awarded one week’s pay. However, it rejected the claim that incorrect facts had been relied upon. The claimant’s manager, the ET said, had clearly considered the impact that remote working would have on the claimant’s ability to perform individual parts of her job. The ET agreed with the manager’s conclusion that the more senior elements of the claimant’s role, especially around people management, couldn’t be as effectively performed remotely as face-to-face.

The ET also said that technology isn’t well suited to the fast-paced interplay which comes from face-to-face meetings or training, and that it was reasonable for her to be expected to attend work in person. Moreover, the manager was not incorrect in identifying the potential risks to the claimant’s performance and that the respondent’s expectations around various activities including face-to-face training and coaching were legitimately part of the respondent’s expectations for the claimant and her work. Takeaway points Many organisations which continued to allow homeworking after lockdown ended are now trying to get their staff back into the office. Where employees are resisting calls to return to the office, employers should be careful to break down the individual’s role and examine each area as part of the overall assessment as to whether remote working should be permitted. What this case doesn’t mean is that employers can simply rely on the statutory reasons for refusal without providing support as to why they apply. The manager, in this case, took care to conduct a balanced look into which parts of the employee’s role would and wouldn’t work remotely. It’s clear from the judgment that this examination led the ET to hold as it did, although it’s important to note that as this is an ET case, it isn’t binding authority. It may be that going through the process of looking at the employee’s role in detail reveals opportunities for alternatives to the employee’s request where that request cannot be accepted. It may show that hybrid working, or other duties, may better suit what the employee wants from their work. n

| Professional in Payroll, Pensions and Reward | April 2024 | Issue 99 36

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