An employee’s right to request flexible working is not new. It was enshrined in Section 80F of the Employment Rights Act 1996 (as amended) with the provisions relating to flexible working coming into effect from April 2003. The legislation has progressed and been refined over time. The latest wording states:
80F Statutory right to request contract variation
(1) A qualifying employee may apply to his employer for a change in his terms and conditions of employment if—
(a) the change relates to—
(i) the hours he is required to work,
(ii) the times when he is required to work,
(iii) where, as between his home and a place of business of his employer, he is required to work, or
(iv) such other aspect of his terms and conditions of employment as the Secretary of State may specify by regulations
This has meant employees have been able to apply for flexible working for some time. Employers must properly consider all such requests.
The Covid Pandemic and Working from Home
Perhaps the Covid pandemic and lockdowns led to the assumption that working from home would become the normal way of working for many employees. Given the restrictions imposed by the UK Government and devolved administrations, employees might have been excused for adopting that assumption. Many businesses continued to operate effectively and successfully throughout Covid-19 restrictions using remote working practices.
Many employees believed that they would be entitled to work permanently from home with no need to attend their place of work. However, they failed to properly understand that working from home was discretionary where no application had been made under Section 80F of the Employment Rights Act 1996 (as amended).
There is no automatic right to work exclusively from home
A recently decided employment tribunal ruled that a senior manager was not entitled to work exclusively from home. This was even though she had been working from home since 2020 and her employment performance reviews were very good.
In the case of Miss Wilson v the Financial Conduct Authority, (Case Number: 2302739/2023), Miss Wilson lost her claim that her employers had been incorrect in refusing her Flexible Working Application to work entirely remotely using computer and other electronic equipment without ever attending a physical office location.
Miss Wilson had been employed by the Financial Conduct Authority (FCA) since 2005. In 2020, her employers agreed that she could work exclusively from home because of “health reasons”. Her contract of employment indicated that her normal place of work was at the office. There was no great elaboration of the reasons for this other than an awareness of the Covid-19 virus.
When the pandemic restrictions began to ease, the FCA reviewed its policies and decided that staff should attend office locations 40% of their working time with 60% of their working time being worked remotely.
Miss Wilson applied to continue her 100% remote working, had a meeting with her line manager and, after due consideration, had her request refused.
The case discussed the reasons the FCA rejected the application to work remotely in some detail and explained their decision to Miss Wilson. This resulted in the tribunal deciding to refuse Miss Wilson’s application.
In her judgement, Employment Judge Richter said: “Importantly in my judgment 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.”
Employers and employees need to fully engage
It is important for employees to set out their reasons when asking for flexible working. It is equally important for employers to consider an employee’s request. Whilst company policy might be specific on flexible working, all facts and circumstances in each individual case must be taken into account before any decision is made.
The employer must be able to articulate the reasons for refusing a flexible working request.
Employment lawyers in Wishaw, Lanarkshire and across Scotland
We have experienced employment solicitors who represent employers and employees and provide advice and guidance on all employment matters. If you have an employment or working from home issue you wish to discuss please contact us.
