The results of a recent employment tribunal case have provided a new twist in the seemingly endless remote-working debate between employees and employers.
Elizabeth Wilson, a senior manager at the Financial Conduct Authority (FCA), had toiled away effectively from home since the start of 2020, shortly before the pandemic. When the FCA’s guidance around hybrid working changed in September 2022 and employees were asked to spend 40% of their time working in the office (for senior leaders it’s 50%), Wilson was adamant that the rules need not apply to her.
She fired off a flexible-working request, citing her excellent performance while working from home and explaining that the technology provided by her employer allowed her to complete all aspects of her job remotely.
When Wilson was called to speak to her manager, Hannah Lipscombe-Mitchell, she felt stressed and tearful, anticipating that she would find out whether her application was successful. But, despite arguing that many of the perceived disadvantages of remote work were “not real”, her request was ultimately unsuccessful.
The incident was eventually brought before an employment tribunal, the results of which were published last month. During the employment tribunal case, Wilson’s manager successfully argued that working remotely could negatively impact performance. Specifically, in regards to Wilson’s ability to provide ad-hoc advice and support to her 14 team members, hold meetings and welcome new staff members.
Although many of these tasks can be performed over platforms like Zoom, Lipscombe-Mitchell’s point of contention was that they are more “effective” in person and, as a senior manager herself, she should uphold the rules she is required to enforce.
Can employers tell managers to come into the office?
Ultimately, the tribunal sided with Lipscombe-Mitchell, determining that “there would be a detriment to the quality and performance of her [Wilson’s] work” should she work from home indefinitely. The decision has been variously described as a “watershed” moment, “paradigm case” and even as the “death knell” for remote working. For many businesses, it will be reassuring to see a tribunal rule in favour of the employer.
Greg Clark, employment associate at BP Collins, says: “A lot of my clients are aware that the law on flexible working is generally taking a pro-employee shift and are wondering how the right to request flexible working becoming a ‘day one’ right in April this year will affect them. But this case is a reminder that the scales haven’t tipped too far in the employee’s favour.”
The tribunal concluded that “there is no right to require an employer to permit that an employee works exclusively remotely” – irrespective of previous performance – and also sided with the FCA in regards to the value of face-to-face work in certain instances.
However, the judge also noted that the case “raises a key issue in the modern workplace and will no doubt be the subject of continued litigation”. This part of the ruling is crucial, according to Samantha Dickinson, equality and diversity partner at Mayo Wynne Baxter. “The FCA case absolutely does not set a precedent that employers can rely upon to insist all their staff work from the office in future,” she says. As it is a first-instance decision, other tribunals are not required to follow it.
However, Dickinson expects lawyers will use it in future litigation. This means that employment tribunal judges will continue to refer to the facts presented by employer and employee when determining the outcome of such claims. Louise Taft, employment lawyer at Jurit LLP, explains: “For an employee to bring a successful case under flexible-working legislation, they effectively have to prove that their employer refused their request based on incorrect facts. In this case, the employee was arguing this point on the basis of having worked successfully from home for the last three years.
“Despite this and the fact she had had excellent appraisals, the FCA successfully argued that permanent homeworking would have a detrimental impact on quality and wider performance, not just for her but for the team and organisation, citing the importance of junior members of staff being able to ‘connect’ with the employee in the office.”
In this instance, the fact that Wilson was managing a team was an important consideration. Employers that chose to deny the home-working requests of other members of staff may not get the same results if it is brought to tribunal.
“Employers absolutely shouldn’t think this case gives carte blanche to refuse similar requests – each request has to be considered on its own merits and in the context of the individual business and employee,” says Kelly Thompson, employment lawyer and partner at RPC.
This is particularly true if the reason for requesting a remote work arrangement is because of a protected characteristic, for example if the individual has a disability or caring responsibilities. This could result in a discrimination claim if handled incorrectly. Each request must therefore be dealt with on an individual basis and carefully considered before reaching a decision.
What the law says about remote working requests
It’s unlikely that this will be the last remote work appeal to go before an employment tribunal and business leaders should be aware that not all judges will reach the same conclusion as in the FCA case.
As the judge says: “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 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.”
HR leaders should use this as an opportunity to review their flexible-working policies and ensure there is a secure business case behind any requests for staff to return to the office.