The WFH Debate: Changes to the Flexible Working Regime and lessons from the Wilson case

With the rules on Flexible Working having changed on 6 April 2024, the remote vs office-based working debate which has been the subject of several workplace disputes and tribunal claims since the Covid-19 pandemic shows no sign of abating. It is therefore important that employers are familiar with the changes having come into force to ensure compliance with any future requests, writes David Leach.

With one of the key changes to the regime being that employers will now only have two months in which to respond to a request, instead of the previous three, we have looked at some recent cases where employers have fallen foul of the time frame and the mistakes made on how they sought to extend time (or failed to), to highlight what must be done to prepare for any challenges ahead.

In recent case Wilson v Financial Conduct Authority (2302739/2023), in her pursuit to force her employer to let her work exclusively from home, a senior Financial Conduct Authority (“FCA”) manager suffered significant defeat at tribunal (in respect of the content of her flexible working request). However, she was successful in a breach of statutory procedure claim as her employer failed to complete the request in the three months and failed to have an agreement in place to extend the time frame.

The Wilson case – background

Wilson started working for the FCA in 2005 and from 2020, due to Covid-19 restrictions, it was agreed she could work from home for described “health reasons”.

Following the easing of the pandemic restrictions, the FCA created a policy that staff should attend office locations for 40% of their working time with 60% of their hours to be worked remotely.

In December 2022, Wilson submitted a flexible working request under the Employment Rights Act 1996 (“ERA”) requesting to work entirely remotely, with no requirement to attend an office location.

The ERA says an employer can only refuse an application on the grounds of detrimental impact on the quality of work, detrimental impact on performance, or both.

On 2 March 2023 Wilson’s request was refused by letter which explained it could potentially “have a detrimental impact on performance or quality of output” and “ability to input in management strategy meetings and be involved in in-person collaboration will also be negatively impacted”.

In response, Wilson lodged an appeal, which was later rejected. The appeal decision letter notifying the outcome is dated 29 March 2023, 21 days after the statutory decision period had expired.

Wilson then brought an employment tribunal claim, accusing the FCA of (1) failing to communicate the appeal outcome within the statutory decision period and (2) basing its rejection of the flexible working request on incorrect facts.

The Wilson case – outcome

The tribunal agreed that the appeal outcome was sent 21 days after the statutory decision period, therefore breaching the limit as no express agreement was ever reached to extend the time limit. As a result, a compensatory award of £643, this being one week’s pay (which is capped at £700 as of 6 April 2024).

On this point, the judge explained “an employer of the size and with the knowledge and resources of the respondent is clearly well placed to deal with such applications in a timely manner as is envisaged in the legislation, but that did not happen here.”

In respect of the assertion that the FCA relied on incorrect facts in rejecting her appeal, the tribunal agreed with the FCA’s refusal to accept the request and dismissed this claim.

The judge averred that although Wilson was a high performer and believed attending the office was not necessary to the success of her role, the company was “right to identify weaknesses with remote working” and potential detrimental impacts, thus the facts relied upon were not incorrect.

The judge also stated that “at the moment there is no right to require an employer to permit that an employee works exclusively remotely but, as is engaged in this case, there is a right that an employer considers such a request in accordance with the statutory scheme”.

The new flexible working regime

From April 2024 Section 1 of the Employment Relations Act 2023 will come into force together with the Flexible Working (Amendment) Regulatuions 2023. This will enable an employee the right to make a flexible working request from “day one”, as the current requirement for an employee to have at least 26 weeks continuous employment will be removed. The employer then has a two-month decision period (which can be extended with agreement) to consider the request, consult with the employee (if the employer is unable to accept the request) and notify the employee of the outcome.

The employer must deal with the application in a reasonable manner.

The employer can only refuse a request for one (or more) of the reasons set out in the legislation the “eight business reasons” under SS80G(1)(B)(I)-(ix) ERA:

• The burden of additional costs
• Detrimental effect on ability to meet customer demand
• Inability to re-organise working among existing staff:
• Inability to recruit additional staff detrimental impact on quality;
• Detrimental impact on performance
• Insufficiency of work: during the period the employee proposes to work;
• Planned structural changes: and
• Such other grounds as the Secretary of state may specific the regulations

When considering the application for flexible working arrangements, the test is set out under Whiteman v CPS Interiors Ltd ET Case No. 2601103/15, where the ET held that employers must act in good faith and base its decision on one of the above and it’s a subjective test whereby the employer must genuinely consider that one or more of the statutory grounds for refusing the request applies.

The employer must treat the request as having been withdrawn by the employee if, without good reason, the employee fails to attend a meeting arranged for that purpose. Similar provisions apply to appeals.

The employee can complain to the ET if the employer:

• Fails to deal with their application in a reasonable matter,
• Fails to notify them of the decision on their application within the decision period,
• Fails to rely on one of the statutory grounds when refusing their application,
• Bases its decision on incorrect facts: or
• Treats the application as withdrawn when the grounds entitling the employer to do so do not apply.

The employee can make no more than two applications during any 12-month period and may not make an application under the statutory procedure if an application is already proceeding.

Appeal

There is no legal right for an employee to appeal. However, ACAS code suggests that an employee should be allowed to appeal and recommends that employer should hear an appeal if:

• The employee has information that was missed or was not available when the employer made the decision.
• The employee feels that the employer’s policy or the ACAS Code were not followed.

The employer must notify the employee of the decision, of any appeal as under S80 (G)(1) and 80G(1A) ERA. The decision period is either:

• Two months beginning with the date on which the employee’s request is made; or
• Such longer period as the parties may agree.

Key takeaways

As the right to request flexible working will become a day one right in April, it is important to ensure compliance with any future requests to reduce the likelihood of successful claims. In light of this, here are a few of the key lessons to take away from the Wilson case:

• Consultation. On receipt of a flexible working request, employers should properly and meaningfully consult with the individual employee about that request. This means not only being open to considering their position but also exploring alternative options if their original request is not possible.
• Where there is a legitimate reason to reject a request, this should be thoroughly articulated to that individual employee. It is not enough to simply say you were following company policy.
• Extension. If the need arises to extend the time frame to complete a flexible working request, it should be detailed in writing exactly what is being extended and by how long. Do not rely on the implication that if you are extending the date for the meeting past the two months that the deadline for the outcome is also extended.
• Consideration. Rather than applying a blanket approach, consideration should not only be given to the statutory regime but also to the employee’s individual circumstances. This is particularly important in relation to employees who may have a disability or childcare / caring responsibilities.
• Avoid a blanket approach. In the Wilson case, the tribunal stressed each situation would require consideration on its own merits, taking account of the individual role and its responsibilities in addition to the needs of the business which will be different in each case.
• Don’t delay. Whilst there are several positive lessons to be taken from the FCA’s approach in their consideration and decision of Wilson’s flexible working request, it is also important to note what went wrong here. The Wilson case acts as a prime example that delay and failure to meet statutory deadlines when responding to a request will likely lead to penalties.
• Compensation. For a breach of the statutory flexible working procedure, a separate head of compensation can be awarded. There are no fixed rules on the compensation that the Tribunal could award. It could be nothing if they consider the breach to be minor / trivial, or it could be up to eight weeks pay.

David Leach is an Associate at Sharpe Pritchard LLP.

This video is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any issue raised in this article, please contact us by telephone or email This email address is being protected from spambots. You need JavaScript enabled to view it.