Warning – flexible working legislation geek post ahead! 

I have seen quite a bit of discussion about a recent flexible working case, and thought it might be useful to break down the relevant law and decision.

The case was covered in People Management Magazine here and geeks can find the full judgement here.

In summary – the individual worked for an organisation with a hybrid working model but asked for full time remote work and this was refused by the organisation. The employer argued that if Wilson worked entirely from home, it would have a detrimental impact on quality and performance. They provided a rationale for this argument. 

A tribunal case followed. If it has succeeded, then the Tribunal could have provided some limited compensation and ordered the employer to reconsider. In this case, the claimant did not win their case.

Before looking at this decision, it might be useful to understand the relevant law. First of all, if an employee makes a flexible working application and it is turned down, there are several potential areas of claim they could bring, depending on the facts. These include:

Constructive unfair dismissal – where the employee resigns because they believe the way their request was handled / decided upon means their employment is untenable (Employment Rights Act).

Discrimination – where the employee argues that due to their claim they have been treated less favourably under a protected characteristic (possibly because they care for a disabled person or because of their sex – typically in the latter case indirect sex discrimination as women are generally more likely to be caring for children) (Equality Act)

Reasonable manner – that (inter alia) the request was not considered by the employer in a reasonable manner or they rejected an application based on incorrect facts (Employment Rights Act). This can include that the request was not handled within the required timeframe. 

Employees cannot complain to a tribunal just because their flexible working request was rejected.

This case, as I have understand it, is the latter – a claim that the case was not considered in a reasonable manner because it was considered on incorrect facts and was not considered in time. It is important to note that this is not an especially common ground of claim – more often we see cases about flexible working request refusals under discrimination law. So we don’t have a lot of precedent here to work with. 

Talking about precedent – this is an ET decision. Decisions here do not bind future decisions – only if the case went to the Employment Appeal Tribunal (and above) would the decision there create precedent. It may be persuasive to future hearings but it does not have to be. The judge noted that these cases will often turn on their own fact (more on that in a minute). 

When hearing claims like this, the decision for the Tribunal is whether or not the employer considered them in a ‘reasonable manner’. The ACAS Code covers what this looks like in practice: https://www.acas.org.uk/acas-code-of-practice-on-flexible-working-requests This includes both process and time taken to consider and respond.

An organisation can turn down a flexible working requests for one of several reasons stated in the Act including extra costs and detrimental impact on the business. A full list can be found in the ACAS code and within the legislation. 

It is important to note is that a Tribunal cannot substitute their own view for the organisations. So they can say ‘the company did not consider this reasonably’ but they cannot say ‘I think the organisation should have allowed this request and I would have done if it was me’. If a company can set out reasonable justification for their view (such as in this case, some in-person attendance at the office is important to them and their particular context) it is unlikely, in my view, that as long as that reasonable explanation, justification or evidence is provided a Tribunal will interfere with an organisation’s decision unless it is perverse or manifestly unreasonable (or perhaps a sham).

One such example was in the case of Commotion Ltd V Ruty (this is an EAT decision and binding) , where it was held that the decision to turn down a flexible working request was made on incorrect facts. In this case, the organisation did not give an proper consideration of the request and there was no evidence provided that the request was not feasible. They had not really looked into what the impact might be of agreeing to the request, in this case to go part time. This case helpfully tells us that whilst a full enquiry isn’t required into the situation / refusal, a Tribunal may look at the assertion made by the employer to decide whether it is factually correct and test it, as well as look at the surrounding circumstances. 

Where does this leave us then? This decision is not binding and may be limited to its own facts. The judge said that the employee’s manager was an impressive witness and had genuinely considered the flexible working request rather than just following a policy. The judge also noted the detailed assessment of where the company felt in-person attendance was important for them, including supervision, ad hoc support to team members (the claimant was a manager), leadership meetings and attendance at events and conferences. The judge did however seem to believe, from their wording in the decision, that some aspects of work are less effective when conducted virtually – not everyone will share this view. 

Ultimately, a different set of facts could well give rise to a different decision in a future case. The issue of ‘factually correct’ (in terms of considering a request in a reasonable manner) will also be a challenge when it comes to remote and hybrid work as the evidence is still in emerging. Where we do have evidence it is often highly contextual and in some cases contradictory.

From the decision:

‘The need for staff to provide a physical presence at an office location is a debate which many companies are now engaged in and which the solutions arrived at will no doubt differ considerably from employer to employer, there will not be one solution which will work for all companies or even for all roles within a company. There is at the heart of many of these considerations a ‘qualitive debate’ as to whether face to face or virtual contact is better. Ultimately it maybe the case that each situation requires its own consideration.’