Lawyers and HR experts expect an increase in employment tribunal cases as companies increasingly clamp down on working from home and staff become resentful that the flexibility they have enjoyed since the Covid crisis is being slowly rolled back.
A number of companies are now advocating a full five-day return to the office, with others enforcing 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 for the full week, and its chief executive, David Solomon, labelled remote working an “aberration”.
Lawyers say some employers have become emboldened after an employment tribunal earlier this year rejected the case of a senior manager who sued the City watchdog, the UK Financial Conduct Authority (FCA), because she wanted to work at home full-time.
The employment judge Robert Richter ruled that the financial watchdog was within its rights to reject Elizabeth Wilson’s request. He said there were “weaknesses with remote working” 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 that while each tribunal claim would turn on its own facts, the FCA case was significant and closely watched.
“The FCA case was not binding but employers have felt it is an important case to consider,” he said. “The issue is becoming a battleground and we advise employers to play it very carefully.”
The HR consultancy Hamilton Nash said it expected the number of employment tribunals involving remote working to rise this year.
Its analysis of past employment tribunal records shows that 42 tribunals mentioned remote working in 2022 – up 50% from the 27 cases in 2021. In the first half of 2023, there were 23 cases, it said. This compares with before the pandemic, when only six employment tribunal cases in 2019 cited working from home, rising to 16 cases in 2020.
“I would expect more tribunal cases on working from home,” said Jim Moore, an employee relations expert at Hamilton Nash. “We’re seeing significant tensions between flexible working requests from people keen to secure their hybrid arrangements and employers pushing people back into the office.”
Gemma Dale, a senior lecturer in the business school at Liverpool John Moores University, said the FCA case “was one of the few cases since the pandemic and there hasn’t been that much case law”.
In some cases, business leaders were advocating a return to the office based on their personal views rather than by looking at data or academic studies on working from home, she said.
She added: “The progress made on flexible working is quite fragile. The Homes Under the Hammer fallacy that everyone who is working from home is watching TV is still strong in some organisations.”
A survey of chief executives by the accountancy firm KPMG published last October found that 63% of global leaders in the UK predicted a full return to in-office working by 2026.
Raoul Parekh, a partner at the law firm GQ Littler, said companies including law firms and big banks were increasingly using entry-gate data to track staff attendance.
“What we are seeing is monitoring of staff, looking at badge data to track staff, and what [we] would expect now around the corner is the next phase of enforcement and disciplinary action. That has not happened yet,” he said.
Last year Lloyds Banking Group offered free food to help win over staff who were asked to come back into the office two days a week. Sharon Doherty, Lloyds’ chief people and places officer, has said the new arrangement provides “an enhanced range of flexible working policies for our people that will help us succeed in driving our ongoing strategic transformation plan”.
Paula Tegg, the assistant general secretary of Accord, the union that represents staff at Lloyds, said most staff had returned since last year’s backlash, “albeit in some cases begrudgingly”, and flexibility had been generally granted where individuals had caring responsibilities or health issues.
