Lawyers and HR experts expect an increase in employment tribunal cases as companies increasingly restrict working from home and staff become resentful that the flexibility they have enjoyed since the Covid crisis is being phased out.
A number of companies are now advocating a full five-day return to the office, while others spend a minimum number of days in the workplace. Administrative staff at Boots, who previously worked in the office three days a week, will return to the office five days a week from September. Many US banks, such as Goldman Sachs, also expect senior staff to come in all week, with their chief executive, David Solomon, calling telecommuting an «aberration».
Lawyers say some employers have taken heart after an employment tribunal earlier this year threw out the case of a senior manager who sued the City’s watchdog, the UK Financial Conduct Authority (FCA), because she wanted to work from home full-time.
Employment Judge Robert Richter ruled that the financial supervisor had the right to deny Elizabeth Wilson’s claim. He said there were «weaknesses in telecommuting» and added that the case raised a key issue «which will no doubt be the subject of continued litigation».
Richard Fox, a partner at Keystone Law, said the FCA case was significant and closely watched, although each court action would turn on its own facts.
“The FCA case was not binding, but employers felt it was an important case to consider,” he said. «That issue is becoming a battleground and we advise employers to play it very carefully.»
Human resources consultancy Hamilton Nash said it expects an increase in the number of employment tribunals involving telecommuting this year.
Its analysis of past employment tribunal records shows that 42 tribunals mentioned telecommuting in 2022 – up 50% on 27 cases in 2021. There were 23 cases in the first half of 2023, it said. This compares to before the pandemic, when just six employment tribunal cases in 2019 cited working from home, an increase to 16 cases in 2020.
«I would expect more court cases about working from home,» said Jim Moore, an employee relations specialist at Hamilton Nash. «We’re seeing significant tensions between demands for flexible working from people looking to secure their hybrid arrangements and employers pushing people back into the office.»
Gemma Dale, a senior lecturer at the business school at Liverpool John Moores University, said the FCA case «was one of the few cases since the pandemic where there hasn’t been that much case law».
In some cases, business leaders have advocated for a return to the office based on their personal views rather than looking at data or academic studies on working from home, she said.
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She added: “Progress in flexible working is quite fragile. The Homes Under the Hammer misconception that everyone who works from home watches TV is still strong in some organizations.»
A survey of chief executives by accountancy firm KPMG published last October found that 63% of UK global leaders foresee a full return to office work by 2026.
Raoul Parekh, partner at law firm GQ Littler, said businesses, including law firms and large banks, were increasingly using gate data to track staff attendance.
“What we’re seeing is staff tracking, looking at badge data to track staff and whatnot [we] it is to be expected that the next phase of implementation and disciplinary measures is now around the corner. That has not happened yet,» he said.
Last year Lloyds Banking Group offered free food to win over staff who were asked to return to the office two days a week. Sharon Doherty, Lloyds’ chief executive of people and places, said the new arrangement provides «an improved range of flexible working policies for our people to help us succeed in our ongoing strategic transformation plan».
Paula Tegg, assistant general secretary of Accord, the union representing staff at Lloyds, said most staff had returned after last year’s backlash, «albeit reluctantly in some cases», and flexibility was generally granted when individuals had care commitments or health problems.
