Do employees have a right to work from home?
The working landscape has undergone a significant transformation since the onset of the COVID-19 pandemic. With a 40% increase in flexible working requests since the pandemic, fully remote and hybrid working models have emerged as attractive options for many workers. Many employers have adopted hybrid working approaches and many employees have used flexible working requests to seek hybrid working or home working.
We recently issued a blog on the upcoming changes to the flexible working regulations which will come into effect on 6 April 2024 in Scotland, England and Wales.
But are employers required to grant requests for hybrid working, or permanent home working?
The recent employment tribunal decision in Wilson v Financial Conduct Authority, while not “binding” authority, has provided some guidance on how employers should manage flexible working requests for permanent homeworking.
Background
The Claimant, Miss Wilson, was a senior manager at the FCA. During the pandemic, it was compulsory for FCA employees to work from home. Following the lockdown, the FCA implemented a hybrid working scheme, requiring staff to return to the office for 40% of their working time. Miss Wilson made a request to work from home permanently (not attend the office at all). She said her performance was exceptional while working from home. Such a request is expressly permitted by the flexible working regulations.
The FCA rejected her request, arguing that permanent homeworking would have a detrimental impact on (1) performance and (2) quality. The FCA acknowledged and agreed that her performance was exceptional, but given the nature of her managerial role, she would be required to oversee other employees and that working from home entirely may have a detrimental impact on her performance and quality of work. The Claimant appealed the outcome of her flexible working request internally, but the appeal was refused.
She raised an employment tribunal claim for breach of the flexible working regulations. Although no worker has a statutory right to work from home, an employer is required to consider requests in line with the required process and base its decision on accurate facts. Miss Wilson argued that the FCA based its decision on incorrect facts – i.e. that performance and quality would suffer if she worked solely from home. While an employment tribunal does not have the power to “grant” a flexible working request, the Tribunal could potentially make an order for the employer to reconsider the flexible working application.
ET Decision
The ET rejected Miss Wilson’s claim that the FCA’s decision on her flexible working request had been based on incorrect facts. Instead, the ET ‘praised’ the FCA for their careful analysis of the individual factors of the case before rejecting Miss Wilsons request.
The ET found that there had been a ‘genuine’ and ‘detailed’ consideration of Miss Wilson’s request. The ET noted the limitations of remote working. Miss Wilson’s position as a senior manager was an important factor. The ET concluded that the FCA’s rejection of the Claimant’s request had been based on correct facts – that it would affect performance and quality. The claim therefore failed and the employer’s decision to refuse permanent home working stood.
What should employers do?
This decision may support the view that employers are normally best placed to decide the most suitable working practices for their business, and that employees do not have a “right” to work from home. However, each case will turn on its own facts, and this decision does not automatically permit employers to refuse any requests for permanent homeworking. Ultimately, an employer may have to justify that decision to an employment tribunal.
It remains crucial for employers to assess the suitability of flexible working arrangements for each role and to be able to show that flexible working requests (including for hybrid or home working) are genuinely and carefully considered on each occasion. If you have any queries in relation to this blog, please contact a member of our Specialist Employment Law Team.
This update contains general information only and does not constitute legal or other professional advice.
Katie Hendry, Solicitor: khe@bto.co.uk / 0141 221 8012 / Connect with Katie on LinkedIn
Rebecca McGregor, Trainee Solicitor: rmc@bto.co.uk / 0141 221 8012 / Connect with Rebecca on LinkedIn
