Why flexibility and rigid rules won’t mix in the workplace

An employment tribunal ruling against a request for home working does not open the way to enforced attendance by employers looking to get staff back to the office.  Instead, employers should be looking to ensure they are as considerate as possible in their approach, and be ready to consider flexible working requests from day one of employment contracts from April this year.

The case of senior manager Elizabeth Wilson was one of the first to consider hybrid working policies introduced by the pandemic.  It involved a challenge to her employer, the Financial Conduct Authority (FCA), over its refusal to let Wilson continue to work from home full time post-pandemic.

At first sight, the ruling could look like an endorsement for employers seeking mandatory in-person attendance in the office.  It’s not that, rather it reinforces established principles – which are that each flexible working application must be considered on its own merit and that employees must be able to access a clear process to make such requests.

Wilson asked to work from home full-time when the FCA moved into a post-pandemic hybrid working model, which required staff to spend at least 40 per cent of their time working in the office. A long-standing employee, she pointed to her exemplary record from the start of the pandemic and argued that she did not need to go to the office to manage her team, saying she could do this online.

The tribunal was looking at a specific point of law, which was whether the decision was based on ‘incorrect facts’.  It found in favour of the FCA, agreeing the decision had been based on correct facts and that the organisation had given genuine consideration to the application and provided specific reasons as to how full-time home working by Wilson could have a detrimental impact.

Her manager listened to the request and did not directly refuse, instead suggesting a compromise level of office attendance of around 10 or 20 per cent, explaining why that was proposed.  This shows a clear, reasoned response to the request for flexibility, which is vital.

As the judge said in this case, there is no single solution that is applicable for all organisations, or even for all roles within one company.  Employers need to be up to date on latest legislation too, as employees will have the statutory right to request flexible working arrangements from day one of their employment very soon.  That comes into force from 6 April 2024.

Blanket approaches to office attendance requirements will not work: there can be a policy, but companies must recognise they can’t refuse to deviate from it without giving due consideration to individual cases.

To discuss this or any other related matter, please call Jane, start a live chat or email us at info@hartbrown.co.uk.

*This is not legal advice; it is intended to provide information of general interest about current legal issues.


Jane Crosby

Partner, Head of Dispute Resolution & Accredited Mediator

Jane is a Partner based in the Guildford office and she is also Head of the Dispute Resolution team here at Hart Brown. Jane specialises...

Jane Crosby -Head of Dispute Resolution

Partner, Head of Dispute Resolution & Accredited Mediator

Jane Crosby

Jane is a Partner based in the Guildford office and she is also Head of the Dispute Resolution team here at Hart Brown. Jane specialises in employment Law and commercial litigation and brings more than 15 years' experience to her role.

Prior to entering the legal profession, Jane was employed in the aviation industry. This experience is appreciated by many of Jane's clients who note that she is able to take a commercial and pragmatic approach to any legal issue that they face.

Jane acts for a wide range of individuals and businesses and her areas of specialism include aviation, property related industries and IT. Jane regularly advises on aspects of employment law, such as settlement agreements, employment contracts, policies and procedures, redundancies, equal pay, data protection, issues arising from TUPE and reorganisations, the calculation of holiday pay, bonus and commission payments, disciplinary and grievance issues, dismissal and termination issues, the protection of confidential information and the enforcement of restrictive covenants. Jane gets involved in GDPR training for her clients and she is able to deliver tailored employment law training sessions upon request.

As a commercial litigation lawyer, Jane also deals in shareholder and directors disputes, commercial contract disputes and the enforcement of restrictive covenants.

Jane has been involved in successful high value commercial litigation for clients in the High Courts, she is an accredited mediator and she is a member of the Employment Lawyers Association.

Jane is often asked to write for a number of well known publications, including The Daily Mail, The Telegraph and The Week and she has been interviewed on BBC Radio 4.

Here is small selection of the feedback that Jane has received:

“Jane, I cannot sincerely thank you enough for your wise counsel and am delighted to have made your acquaintance. If I am blessed with a new position somewhere I will hand over my contract in the first instance to you. Likewise, any of my friends, peers, romans and countrymen wanting advice, I will point them in your direction.”

“Jane, you have been most resilient on my behalf for which I sincerely thank you for all your endeavours. I have a tremendous working relationship with Hart Brown and you have undoubtedly compounded this further."

“I appreciated the clarity of advice given at a stressful time”.

“A sensitive and highly professional approach and efficient work in the interests of the client”.

“Your advice, conduct and assistance have been indeed outstanding and very professional but also – and most importantly – very humane”.