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Why hello there. It’s me, Philip Pearson-Batt, here with all things Precept updates in this week’s weekly blog.

It’s winter, so I haven’t really been up to much exciting recently. I don’t know about you but I’m a little bit ready for Spring. There are signs of it coming, aren’t there? Our daffs have started coming up in the garden, it wasn’t dark when I left work the other day and we’ve just had Groundhog Day.

Wait. Groundhog day. What?

Aside from being a 1993 Bill Murray movie, Groundhog Day is an actual day in North America. Since 1887, the tradition has become more well known in a certain part of the east cost of America where a groundhog in Punxsutawney, a town in Pennsylvania, predicts the next 6 weeks’ worth of weather based on whether he sees his shadow when he emerges from hibernation on 2nd February (think Carole Kirkwood but with fur and big teeth).

What is the name of this beloved groundhog? Why… it’s Phil! A very strong and noble name if you ask me (sidenote: a friend and I went to see the musical version of Groundhog Day in summer 2023 and the stage was full of people with hats that had Phil lit up in bright lights on them. Still trying to buy one of those as we speak!)

The issue is, Phil and his ancestors haven’t got the best track record. Yes, they might be rather cute (and make for a cracking film/musical) but figures show that they’ve got their predictions right about 39% of the time. Now, for a four-legged friend, that isn’t awful. But if you or I were to get our job right 39% of the time, we’d expect some sort of performance management process right? Well, if you want to know how to performance manage your employees (not your groundhogs) then why not sign up for our Performance Management training session which is taking place next week: SIGN UP HERE

But enough about groundhogs! This is a serious (ahem) employment law blog.

I wanted to take a second to focus back in on flexible working requests. They’re big news at the minute with changes to the statutory scheme coming up fast. But we’ve also had some recent case law on flexible working requests that I think might be useful as a demonstration as to how they work in practice.

In Wilson v Financial Conduct Authority the Employment Tribunal have provided valuable principles on how to manage flexible working requests properly, serving as an ever useful reminder that each request should be considered on it’s own merits, rather than taking a blanket approach.

Miss Wilson was a senior manager within the FCA. She submitted a flexible working application in December 2022. Whilst Miss Wilson had been working remotely since the start of the COVID-19 pandemic, the FCA introduced a policy requiring staff to work on a 60:40 remote/office basis. Miss Wilson submitted a flexible working request, asking to formalise her arrangements and to work entirely remotely.

This was initially overlooked by the FCA – they just didn’t know who should deal with the request – but was eventually picked up and formally responded to in March 2023, some 21 days after the 3 month period for response had passed. The FCA rejected Miss Wilson’s request on the basis it may have a detrimental impact on her quality of work and therefore her performance (one of the seven stated business reasons which employers can rely on when rejecting flexible working requests).

Miss Wilson brought claims against the FCA for breach of the Flexible Working Regulations on two grounds.

First, Miss Wilson claimed the FCA had failed to respond within the 3 month time limit. The Tribunal upheld this claim and ordered the FCA to pay one week’s pay as compensation. Whilst the maximum award for breach of the Flexible Working Regulations is up to eight weeks’ pay, one week’s pay was deemed reasonable here because the delay had not been excessive.

Second, Miss Wilson said that the FCA’s reliance on a detrimental impact to quality and performance for rejecting her application was based on incorrect facts. Here, the Tribunal held that the FCA’s decision was actually based on correct facts. The judge pointed out in particular that the person making the decision on Miss Wilson’s application had genuinely considered its merits. They had set out in detail the reasons why the requested change may have a detrimental impact, whilst at the same time balancing this against Miss Wilson’s previous good performance record whilst she had worked remotely. The judge ultimately praised the FCA’s decision maker for undertaking a detailed consideration, rather than relying on the FCA’s hybrid working policy.

What is the lesson here? What can you takeaway?

  1. The person making a decision on a flexible working request should actually apply their mind to the reasons for and against granting the request. It shouldn’t just be a case of “this is our policy, like it or lump it”.
  1. In Miss Wilson’s case, the arguments against working remotely on a full-time basis were the importance of face-to-face interactions for supervision and training purposes, which was particularly important in light of Miss Wilson’s seniority within the organisation. Whilst these arguments might be relevant in requests you’re considering, it’s important to actually look at what is happening in each case individually because – you never know – they might also be totally irrelevant!
  1. Detailed written responses to flexible working requests are helpful where you are rejecting them. Working through your decision making in writing helps the employee to properly understand why you’re rejecting the request, which could result in fewer claims. At the same time, it will spell out clearly to any lawyer or judge looking at the case, what was in the decision maker’s mind at the time the decision was made, which will help defend any Tribunal claims.
  1. Remember remember the 6 April 2024! Key changes to the flexible working request regime are coming into force from that date. We’ve recapped those changes a couple of times now and you can find our latest update here: CLICK HERE

If in doubt on flexible working requests, who you gonna call? Team Precept! We’re something of experts on this topic, so let us know how we can help and keep your eyes peeled for our upcoming session on all things flexible working, coming to a webinar near you soon!