Category: Deep dive

FCA manager loses tribunal claim over permanent remote working request

The outcome does not mean that employers can automatically reject requests for remote working

Summary: The case of Elizabeth Wilson v the FCA was an employment tribunal claim that was heard on 20 November 2023. Wilson, a senior manager at the FCA, applied for a flexible working arrangement to work from home permanently, but her request was rejected by her employer. She then challenged the decision on the grounds that it was based on incorrect facts. However, the tribunal dismissed her claim and only awarded her a small compensation for the delay in notifying her of the outcome of her appeal.

Elizabeth Wilson v the FCA: A Case Study on Remote Working

Introduction

Remote working, or the practice of working from home or another location outside the office, has become increasingly popular and necessary in the wake of the COVID-19 pandemic. However, not all employers and employees agree on the benefits and drawbacks of this arrangement, and some disputes may arise over the right to request and refuse flexible working applications. One such dispute was the case of Elizabeth Wilson v the Financial Conduct Authority (FCA), an employment tribunal claim that was heard on 20 November 2023. This case study will provide a summary of the facts, the legal issues, the outcome, and the implications of the case for the future of remote working.

Facts of the Case

Elizabeth Wilson was a senior manager at the FCA, the UK’s financial regulator, since 2005. Her initial contract indicated that her normal place of work would be at a physical office location. However, in early 2020, she was allowed to work from home for health reasons, and continued to do so during the national lockdowns imposed by the government to contain the spread of the coronavirus. She claimed that she performed well and maintained effective relationships with her colleagues and stakeholders while working remotely.

In December 2022, after the pandemic restrictions eased, the FCA implemented a policy of asking staff to return to the office for two days a week, or 40% of their working time, and work remotely for the remaining 60%. Wilson submitted a flexible working request to work from home permanently, arguing that she had proven her ability to work remotely and that it suited her personal circumstances better. She also cited environmental and financial benefits of reducing her commute.

In March 2023, she learned that her request was rejected by her manager, who stated that working from home would have a detrimental impact on her performance and quality of output. The manager cited several reasons, such as the loss of face-to-face training, collaboration, and coaching opportunities, the difficulty of managing a team remotely, and the need to input in management strategy meetings and be involved in in-person activities. Wilson appealed the decision, but it was also rejected by the director of authorisations, who upheld the manager’s reasoning and added that the FCA had a legitimate expectation that Wilson would complete certain elements of her work in the office.

Wilson then lodged a tribunal claim, alleging that the FCA had failed to comply with the statutory procedure for dealing with flexible working applications, and that the decision to reject her request was based on incorrect facts.

Legal Issues

The legal framework for flexible working applications is set out in sections 80F to 80I of the Employment Rights Act 1996 (as amended). According to section 80F, a qualifying employee may apply for a change in the terms and conditions of their employment, such as the hours, times, or place of work. According to section 80G, the employer must deal with the application in accordance with the regulations made by the Secretary of State, and must only refuse the application on one or more of the following grounds:

  • the burden of additional costs
  • detrimental effect on ability to meet customer demand
  • inability to reorganise work among existing staff
  • inability to recruit additional staff
  • detrimental impact on quality
  • detrimental impact on performance
  • insufficiency of work during the periods the employee proposes to work
  • planned structural changes

The employer must also notify the employee of the final decision within three months of the application, unless an extension is agreed. According to section 80H, the employee may present a complaint to an employment tribunal if the employer fails to comply with the procedure, or if the decision to reject the application is based on incorrect facts.

The main legal issues in the case were:

  • Whether the FCA had complied with the procedure for dealing with flexible working applications
  • Whether the FCA had refused the application on one or more of the statutory grounds
  • Whether the FCA’s decision was based on incorrect facts

Outcome of the Case

The employment tribunal dismissed Wilson’s claim, except for a minor breach of the procedure. The tribunal found that the FCA had complied with the procedure for dealing with flexible working applications, except for notifying Wilson of the outcome of her appeal within the statutory time limit. The tribunal awarded Wilson a small compensation of £643 for the delay, equivalent to one week’s pay.

The tribunal also found that the FCA had refused the application on the ground of detrimental impact on performance, which was one of the statutory grounds. The tribunal accepted the FCA’s arguments that working from home would affect Wilson’s ability to deliver face-to-face training, collaborate with colleagues, coach new team members, and participate in management strategy meetings. The tribunal noted that these were legitimate expectations of Wilson’s role as a senior manager, and that the FCA had a reasonable basis to conclude that working from home would negatively impact these aspects of her work.

The tribunal further found that the FCA’s decision was not based on incorrect facts, as Wilson had alleged. The tribunal rejected Wilson’s claim that she had performed well and built effective relationships while working remotely, as these were subjective assessments that did not negate the FCA’s concerns about the potential risks to her performance. The tribunal also rejected Wilson’s claim that the FCA had failed to consider the environmental and financial benefits of working from home, as these were not relevant factors for the FCA’s decision.

Implications of the Case

The case of Elizabeth Wilson v the FCA is one of the first cases to deal with the issue of remote working in the post-pandemic era. It illustrates some of the challenges and conflicts that may arise between employers and employees over the right to request and refuse flexible working arrangements. It also highlights some of the factors that employers and employees should consider when making and assessing such requests, such as the nature and requirements of the role, the impact on performance and quality, and the expectations and preferences of both parties.

The case does not mean that employers can automatically reject requests for remote working, or that employees have no right to work from home. Each case will depend on its own facts and circumstances, and the employer must still follow the statutory procedure and grounds for dealing with flexible working applications. However, the case does suggest that employers may have a strong case to refuse requests for remote working if they can show that it would have a detrimental impact on the employee’s performance, and that this impact is based on reasonable and objective grounds.

The case also does not mean that remote working is not a viable or beneficial option for some employees and employers. Remote working may still offer advantages such as increased flexibility, productivity, and well-being for some workers, and reduced costs, turnover, and absenteeism for some employers. However, remote working may not suit every role, every organisation, or every individual, and there may be trade-offs and challenges involved, such as communication, collaboration, and supervision issues. Therefore, remote working should be considered as one of the possible options for flexible working, rather than a default or universal solution.

The case of Elizabeth Wilson v the FCA may have implications for the future of remote working, as it may influence the attitudes and behaviours of employers and employees towards this practice. It may also prompt further legal developments and guidance on the issue, as the law and regulations on flexible working may need to adapt to the changing realities and expectations of the post-pandemic world.

By Pat Harrington

Citation: Wilson v Financial Conduct Authority [2023] ET 2302739/2023.
You can find the full judgment of the tribunal here: https://assets.publishing.service.gov.uk/media/65a8ecedb2f3c60013e5d4e9/Mrs_E_Wilson_v_Financial_Conduct_Authority_2302739-2023_Judgment__002_.pdf

Disclaimer: This case study is for informational and educational purposes only. It is not intended to provide legal advice or opinion on any specific issue or situation. It does not constitute or create a solicitor-client relationship between the author and the reader. The reader should not rely on the information or analysis in this case study as a substitute for professional legal advice or consultation. The reader should always seek the advice of a qualified lawyer before taking any action or making any decision based on the information or analysis in this case study. The author does not accept any liability or responsibility for any errors, omissions, or inaccuracies in this case study, or for any consequences or damages arising from its use or misuse.

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Defend the right to protest, defend the right to strike!

Key rights are under attack in Britain. As the Tory government faces widespread opposition in workplaces and on the streets they are seeking to bring in laws to shut down the protests. They are attacking our right to strike and our right to demonstrate. Pat Harrington, General Secretary of Solidarity, said: “It’s no coincidence that both the right to protest and the right to strike are under attack. The attacks are linked and so should our response to them be.”

Defend the right to protest

Protest is a form of nonviolent direct action that allows people to voice their grievances and demands in public. It is a way of engaging in the civic space and has been instrumental in achieving human rights through actions such as strikes, marches, sit-ins, and civil disobedience. Protests have played a significant role in liberation and justice movements and continue to impact change through creative and diverse forms. Throughout history, protests have led to positive change, although it often requires strong social movements, persistence, and participation. Despite attempts by authorities to suppress protests, their influence and legacy can be seen years later through changing social norms and laws. The power of protests lies in highlighting the lack of legitimacy of repressive power structures, raising awareness, and contributing to the gradual change of language, minds, and behaviours until a tipping point is reached. Over time, these processes have led to improvements in various issues such as governance, labour conditions, gender equality, environmental protection, and more.

Sacha Deshmukh, Amnesty UK’s Chief Executive Director said:

“It follows a pattern of a government voicing support for protest around the world but cracking down on the right to speak up here at home.”

These new attempts to reduce protest rights are in breach of international human rights law. On September 2020, the UN Human Rights Council General Comment on the right to peaceful assembly stated:

“State parties should not rely on a vague definition of ‘public order’ to justify overbroad restrictions on the right of peaceful assembly. Peaceful assemblies can in some cases be inherently or deliberately disruptive and require a significant degree of toleration.”

For example, the government proposed Serious Disruption Prevention Orders go even further than Russian Law on Assemblies. In Russia, people convicted of protest-related offences are not allowed to organise protests. If the Public Order Bill passes, people convicted for protesting would not even be allowed to participate.

Defend the right to strike

The UK government’s proposed Strikes (Minimum Service Levels) Bill has sparked controversy as it aims to limit the right to strike of workers in key public services such as health, education, transport and more. Many human rights defenders say that the bill is a direct attack on workers and their trade unions and instead of addressing the issues that lead to strikes, the government is making it harder for workers to win fair pay. The bill allows the government to set “minimum service levels” for public services, but with no detail on the limits, the government may impose restrictions without agreement with unions. The bill also gives employers the right to serve the union with a “work notice” specifying the number of workers required to work during the strike and mandates the union to ensure compliance, which the union claims would force them to break the strike. The bill removes protection for striking workers, allowing employers to dismiss those who take part in lawful industrial action and making unions liable for up to £1 million if they do not attempt to force striking workers to work, which will limit the right to withdraw labour.

The right to strike is a fundamental aspect of workers’ rights and a cornerstone of a just society. It provides workers with a means of bargaining for better wages, working conditions, and overall treatment from their employers. Without the right to strike, workers would have no way of leveraging their power and making their voices heard, leading to a situation where employers hold all the power in the workplace.

One of the main reasons why the right to strike is so important is that it helps to balance the power dynamic between workers and employers. Workers, particularly those who are low-paid or in low-skilled jobs, often face challenging working conditions and limited opportunities for advancement. By striking, they can draw attention to their grievances and force employers to take their concerns seriously. This, in turn, helps to create a more equitable and just workplace, where workers are treated with dignity and respect.

Another reason why the right to strike is important is that it provides workers with a way of seeking fair compensation for their labor. In many cases, workers are not paid a living wage and are unable to make ends meet, even when working full-time. By striking, workers can demand better wages and benefits, helping to ensure that they are able to provide for themselves and their families.

Strikes can also play a key role in promoting social justice and advancing human rights. For example, the right to strike has been instrumental in achieving many of the key labor rights that workers enjoy today, such as the minimum wage, paid holidays, and the right to form a union. By striking, workers can put pressure on governments and employers to make positive changes that benefit not just themselves, but society as a whole.

Finally, the right to strike is also important because it is a key component of democratic societies. Workers have the right to express their opinions and demand change, just like any other citizen. By striking, they can make their voices heard and contribute to the democratic process, helping to create a more inclusive and equitable society.