Wilson v Financial Conduct Authority

Background:

Flexible working was introduced in the UK in 2003. However, the COVID-19 pandemic led to a significant increase.

In December 2022, Miss Wilson (a senior Financial Conduct Authority manager) submitted a Flexible Working Application based on the Employment Rights Act 1996 section 80F. Her request was to work from home 100% of the time. Her employer rejected this request.

Proceedings:

Miss Wilson appealed to the Croydon Employment Tribunal. Her claim was focused on overturning the decision to reject the request.

Miss Wilson stated that she was an excellent employee and that her department consistently exceeded targets. She argued that her ability to lead her department was irrelevant to her physical location due to remote work.

The Financial Conduct Authority submitted it was logistically unfeasible to grant the request. For instance, they argued Miss Wilson would not be able to attend in-person events or physically welcome new staff members.

Judgment:

On November the 20^th, 2023, the employment tribunal found in favour of The Financial Conduct Authority (FCA).

Judge Richter delivered a 17-page judgment, which focused on two key issues.

The length of time taken to reject the flexible working request

The Employment Rights Act 1996 section 80G (1) (aa) states the employer must notify the employee of their decision concerning the request within the ‘decision period’. The decision period is now 2 months. However, at the time of Miss Wilson’s initial request, it was 3 months.

The letter rejecting the request was sent to Miss Wilson 21 days after the 3-month statutory deadline. Miss Thomas (representing the FCA) argued any breach of this time requirement was ‘only a technical one’ and should not lead to compensation. However, Mr Blitz (representing Miss Wilson) argued that ‘the time limit is clear’ and compensation should be awarded. Judge Ritcher agreed and found this issue in Miss Wilson’s favour.

Whether the flexible working request was rejected based on incorrect facts

Miss Lipscombe-Mitchell (Miss Wilson’s manager) rejected the request to work from home 100% of the time. She provided several reasons for this decision, which Miss Wilson argued were based on incorrect facts.

Firstly, Miss Thomas (representing the FCA) argued allowing this request would lead to managerial issues. At the time of the application, Miss Wilson managed 14 staff members. The company policy was employees could work at home up to 60% of the time. Miss Thomas stated that Miss Wilson would struggle to enforce this policy and sanction her 14 staff members for breaching it when she did not adhere to it. However, Mr Blitz submitted this would not be an issue as Miss Thomas was very well respected by staff due to her excellent managerial

ability and competency. He presented 22 positive references demonstrating Miss Wilson’s soft skills in particular. Additionally, he stated Miss Wilson only manages 4 of the 14 staff directly, so the potential impact had been ‘exaggerated’. Despite this, Judge Richter agreed with Miss Thomas that this would likely cause managerial issues.

Secondly, Miss Thomas argued that allowing the request would be impractical. She argued certain events and meetings could only be effectively delivered in person. For instance, ‘Department Day’ operating in a ‘market stall layout’ involves new employees moving around the stalls and physically meeting managers. Conversely, Mr Blitz submitted all these events and meetings were possible for Miss Wilson to attend remotely via video link. He relied upon a previous case, Commotion v Rutty 2006. This case stated, ‘there is no empirical evidence that face to face working is better than remote working’. However, Judge Richter concluded this case distinguished from Commotion v Rutty due to Miss Wilson’s position as a senior manager and agreed with Miss Thomas.

Outcome:

Concerning the first issue, Judge Richter awarded Miss Wilson 1 week’s pay for the delay in receiving the decision.

However, Judge Richter found the second issue in favour of the FCA. He dismissed Miss Wilson’s appeal that the rejection of the flexible working request was based on incorrect facts.

Commentary:

This case is only a fist-instance tribunal decision. Therefore, it does not create a judicial precedent for future cases. However, it highlights an important theme. It shows employers, must consider the employee’s individual circumstances when refusing a request rather than taking a ‘blanket approach’.

Judge Richter stated, ‘This case raises an issue in the modern workplace that will be subject to continued litigation.’ Therefore, this case demonstrates that there will be an influx of employees appealing to flexible working request decisions.

There are two main reasons more employees will litigate the issue in this case.

Firstly, many companies are beginning to tighten their flexible working policy. For example, Boots is asking staff to return to the office 5 days per week starting in September. This will create more tension between employees and the employer.

Secondly, from April 6th, 2024, flexible working requests became a day-one employment right. This means employees can request and appeal to the tribunal, if necessary, much earlier.

Ultimately, flexible working request litigation will only increase following this case and recent legislation and employer policy developments.

Written by Nick Bowes