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Flexible working requests update

View profile for George Miller
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A recent story caught the headlines because the Employment Tribunal upheld the decision of the Financial Conduct Authority that an employee should not be allowed to work entirely from home.

The employee had been working from home since the beginning of the Covid pandemic and submitted a flexible working application to her employees to formalise the arrangement. This was refused by the FCA on the ground that it would lead to a decline in the quality of the employee’s work. In particular, their view was that someone in a senior management position needed to be in the office to welcome new staff, provide training and supervision and to build staff relationships.

The employee challenged that decision in the Tribunal; however she was unsuccessful as the Tribunal approved of the employer’s reasoning in declining the request.

This claim, however, ultimately does not set a precedent for similar claims in the future as tribunal decisions are not binding on future tribunals. Each future claim will be decided on its own facts.

The key advice for employers dealing with flexible working requests is to consult with employees before making a decision, and if declining a request, to use one of the statutory grounds for declining a request and justifying why that ground applies, using evidence where possible.

Employers have eight statutory grounds to refuse a request, and they can use more than one of if needed. There have been successful claims from employees where the employer did not provide sound reasoning for refusing a request. In most cases we anticipate that employers will be able to reach they decision they desire, but they must follow the process and formalities.

The right to make a flexible working request is set to change in April this year, when employees will be able to make a request from their first day of employment instead of after six months.

They will also be able to make two requests a year, instead of one. These changes are detailed under the Flexible Working (Amendment) Regulations 2023. With these changes set to come into force soon, and a general trend that sees employers wanting staff back in the office, the tension looks likely to rise and more disputes could be on the horizon.