There is an evident trend towards employers enforcing a return to the office, with a slew of stories being published in recent months about organisations such as Boots, Nationwide, JD Sports and Deutsche Bank mandating various levels of in-person attendance. Many have predicted that the number of flexible working claims brought to the employment tribunal are going to increase as a result. But what do employers need to know about recent developments, and how can they protect themselves?

As an employment lawyer, the issue of the withdrawal of flexible working arrangements is something my clients are increasingly raising with me in our conversations. There are clear lifestyle implications, as many clients have structured their lives on the assumption that they will be able to work flexibly and are now finding it impractical to come into the office and resent being pushed to do so. Some live a significant distance away from the central city offices to which they would be expected to commute, or simply want to prioritise time spent with family over time spent travelling to work.

Legal implications

There are obvious legal implications to this trend. There is an inherent tension between employees’ experience of somewhat of a golden age of working from home, reinforced by the recent strengthening of the right to request flexible working, and employers’ desire to see people back in the office. I, like others, believe there will be an increase of employment tribunal cases with a flexible working element, and this is something I have already begun to see in the disputes I advise on. There are also other potential claims at play which may increase in number alongside flexible working claims. For example, I have clients with disabilities who have been disadvantaged by the inflexible application of return-to-office policies, some of whom have even been dismissed on disciplinary grounds on this basis. Not only does this engage the law on flexible working but also discrimination law, something which can offer far more powerful protection for employees who fall within its remit.

Employers may have been encouraged by the recent Wilson v FCA case, which is the first with any real profile to deal with flexible working applications as a central issue. In that case, Miss Wilson had made a flexible working application to work entirely remotely, which was rejected by her employer, the FCA. Miss Wilson claimed that the FCA had rejected her application on the basis of incorrect facts, namely that it would have a detrimental impact on quality and performance if she worked entirely remotely. The tribunal dismissed this part of her claim, separately awarding a small sum of compensation for breach of the decision time limit.

This judgment should not be taken as giving the green light to employers to indiscriminately reject flexible working applications, however. For one, this is a first instance decision with no legal authority in a very underdeveloped area of law. Even more important is the approach the FCA took when considering the application and the court’s view of the situation. A key take-away for employers in this case is that the claimant’s manager genuinely considered and carefully analysed the merits of her flexible working application in its full context, ultimately identifying various reasons why it would have been inappropriate to approve the suggested arrangement. This was not a knee-jerk rejection based on ill-considered factors. The tribunal contrasted this set of facts to another case in which there was no such careful consideration and instead simply a blanket enforcement of policy by the employer. The tribunal noted that there is unlikely to be a flexible working solution which works for every employer, or even for every role within a company, and that flexible working applications ultimately may have to be determined on a case-by-case basis. Given this highly contextual approach, it is therefore unlikely that a future tribunal would look favourably on a company seeking to rely on the Wilson decision to defend a poorly considered or automatic rejection of an employee’s flexible working application.

Nevertheless, and while the ACAS Code of Practice states that employers must agree to a flexible working request unless there is a genuine business reason not to, there is a wide scope for companies to take the needs of the organisation into consideration and ultimately to justify rejecting a flexible working application on the basis of a defined list of reasons, including detrimental impact on quality and performance. As noted in the Wilson judgment, given the wide range of businesses out there, it is likely that different employers will take different approaches depending on their needs. Indeed, given the variability of roles within a company, it may be appropriate that some staff are afforded more flexibility than others within the same company, for example if some roles are more solitary while others require more team engagement.

Aside from employees’ increased awareness of and interest in flexible working, another potential driver of increased litigation is the discretionary nature of flexible working requests. While employers may have access to quantitative data when making flexible working decisions, much of the analysis of whether, for example, there is going to be a detrimental impact on performance is likely to be qualitative. When combined with the fact that different employees may be afforded different levels of flexibility within the same organisation, it is easy to see how some employees may become dissatisfied with the handling of their requests and decide to bring a claim as a result.

Key for employers to prevent and defend against claims is to ensure that there are clear flexible working policies in place which align with the law, and which are followed in all cases. Such policies should include commitments to handle every request in a reasonable manner, to not reject requests without first consulting the employee concerned, to decide all requests within two months (subject to any agreed extension), and the right to appeal against a rejection. The last of these is not a legal requirement but is recommended by ACAS as good practice.

Another key concern is to ensure that employers do not discriminate against employees in the process of determining a flexible working application. This is particularly relevant for disabled employees, who may make flexible working applications in which the arrangements sought also qualify as a reasonable adjustment for their disability. If this is the case, employers are legally obliged to deal with the request in line with the requirement to make reasonable adjustments under the Equality Act 2010, which affords far less scope for rejecting the request than the flexible working scheme. Employers should also ensure that, in exercising their discretion, they do not discriminate against employees through differential treatment. ACAS’ recommendations to undertake flexible working discussions with an open and collaborative approach and, should a request be rejected, to provide clear reasoning as to why will be important here. Following the law and good practice will help ensure organisations are protected as far as possible from potential claims.