November 13, 2021

There are many situations in which an employer’s acceptance or refusal of remote working arrangements can affect the fairness of a dismissal under S.98 ERA, although the ‘range of reasonable responses’ test for unfairness prevents tribunals from substituting their views on remote working for those of the employer. In Akotha v British Gas Trading Ltd ET Case No.3328066/17, A lived in Croydon and commuted to BGT Ltd’s office in Staines, a journey of one hour and 45 minutes each way, three days per week. When BGT Ltd closed the Staines office, it sought to move A to the Windsor office, relying on a mobility clause in A’s contract that allowed it to change the place of work to ‘any other place within a reasonable daily travelling distance of your residence’. The tribunal found that A’s eventual dismissal when she refused to accept the move was fair.

A had proposed alternatives, including increasing her homeworking days from two to three per week. However, the tribunal found that it was reasonable for BGT Ltd to reject this suggestion, having regard to the fact that its policy was to allow only one day homeworking, and so it had already accommodated A to some extent by allowing two days.

The tribunal in Digpaul v Entrust Datacard Corp and ors ET Case No.2600725/18 showed a similar level of respect for the employer’s conclusions. D was employed by D Ltd, a UK company. He worked from his home in Leicester and travelled to D Ltd’s office in Hampshire when required. In 2013, D Ltd merged with its global parent company, EDC, a US company based in Shakopee, Minnesota. Following a review, EDC determined that D’s role should be performed in Shakopee, and it dismissed him for redundancy since he was unwilling to relocate. The tribunal rejected D’s unfair dismissal claim. It accepted that EDC reasonably took the view that collaboration within D’s team could be optimal only if the team was in the same place – D being in a different country and time zone was a barrier to that effective collaboration. It was therefore entitled to reject D’s suggestion that he could continue working remotely.

In Yunas v London Borough of Hackney ET Case No.3201672/19, an employment tribunal found that the Council’s failure to investigate the possibility of homeworking for Y, who had a high level of sickness absence, did not render her eventual dismissal
for lack of capability unfair. The Council reasonably concluded that, given Y’s past absence levels, she was unlikely to be able to maintain adequate attendance in future. Although she had asked about homeworking, suggesting that it would help her attendance improve, the Council was entitled to take the view that it should take the overall decision based on past absence first before considering homeworking.

In Frankland v British Telecommunications plc ET Case No.1301469/18, F had to be moved to a non customer-facing role following a customer complaint, which led to the loss of his security clearance. BT plc identified a desk-based role that did not require security clearance, but it had to be based in the office in Birmingham.

F declined this proposal because he wished to continue working from home. The employment tribunal found that F’s eventual dismissal for unsatisfactory performance and loss of security clearance was fair. In concluding that BT plc’s search for alternative employment and eventual decision to dismiss were reasonable,
the tribunal took into account F’s lack of flexibility, in particular his unwillingness to consider an office-based role.

Equality issues

Employers need to be aware of the potential for equality issues such as indirect discrimination to arise in relation to access to homeworking and hybrid working arrangements, regardless of whether such arrangements are discretionary or contractual. Equality issues also require careful consideration if an employer is thinking about offering lower rates of pay to those working from home. Even if such changes are agreed by the employee, they could still present the basis for an equal pay or discrimination claim further down the line.

Acas guidance on hybrid working, published on 13 July 2021, sets out a number of pointers for employers to help ensure they treat all employees fairly, wherever they are working. It states that they should be given access to the same work, support (including access to their representatives) and opportunities for training, development and promotion. The guidance recommends that line managers communicate regularly with everyone they manage, and that an employee should not miss out on anything because of where he or she works.

Indirect discrimination under S.19 of the Equality Act 2010 might arise where the employer insists on a minimum amount of office-based working. This has the potential to disproportionately affect those with childcare responsibilities or caring responsibilities for adults (both groups being predominantly women), as well as those with disabilities who find it difficult to travel. The key question will generally be whether any such disadvantage can be objectively justified.

In Kennedy v Rowan International Ltd ET Case No.1403796/19, K began employment with RI Ltd in May 2019 on a contract that stated that she would be ‘home based with regular time to be spent within head office or such other place as the company may require’. It was initially envisaged that K would come into the office two days per week and work the rest of the time at home. However, by the end of June 2019, RI Ltd had concerns about K’s ability to build relationships and understand the business while working at home. It therefore asked her to work in the office for four days per week for a temporary induction period. K refused, being unable to fit this in with her childcare arrangements, and she was dismissed.

The employment tribunal rejected her claim of indirect sex discrimination, finding that the requirement to be office-based was objectively justified. RI Ltd had the legitimate aim of getting K to complete her induction and become fully integrated into the business, which corresponded to a real business need. The tribunal accepted that it is generally desirable for employees joining a new employer to attend the office for a period of time in order to build relationships with colleagues and understand the business, and it was particularly important in K’s case because she had to manage a team that had previously not been managed well.

The tribunal also took into account the fact that RI Ltd had initially tried to accommodate K’s wish to come in only two days per week, which hadn’t worked out, and that it had offered to pay for childcare and accommodation.

In Follows v Nationwide Building Society ET Case No.2201937/18, F was a senior lending manager (SLM) for NBS. She worked full time from home but attended the office weekly for meetings. The main reason why F worked from home was that she cared for her elderly and disabled mother. Due to a change in the nature of NBS’s business, it decided to reduce the number of SLMs. NBS also decided that its SLMs should no longer work from home on a full-time basis, taking the view that they needed to provide effective onsite  managerial supervision and support to more junior staff following the reduction in headcount.

When F was dismissed, she brought claims of, among other things, unfair dismissal and indirect discrimination based on her association with her disabled mother. An employment tribunal upheld her claims. In relation  to unfair dismissal, the tribunal did not accept that a redundancy situation was established. It found that NBS was unable to show that its rationale for deleting homeworking posts had any basis in evidence; the decision was based on a view among senior management that homeworking posts should be deleted simply because it would be ‘better’ to do so, rather than on any analysis of the business need for onsite SLMs or any consideration of an alternative approach.

As to indirect discrimination, the tribunal accepted that a policy that SLMs could no longer work from home on a full-time basis put F at a disadvantage because of her association with her mother’s disability, and that it would put carers for disabled people at a disadvantage as a group. It went on to find that NBS’s claimed need for onsite supervision did not constitute a legitimate aim since it did not respond to a real need for the business, and that NBS had failed to consider the balance between the business’s needs and the discriminatory effect on F. 

In Westgate v Commissioners for HM Revenue and Customs ET Case No.1400587/17, W worked at home because of her disability. Following a reorganisation, her role was no longer required and she was placed in the redeployment pool. W complained that this put her at risk of redundancy (although, in the event, she was not dismissed), and claimed that this amounted to unfavourable treatment because of something arising in consequence of her disability under S.15 EqA.

The employment tribunal accepted that the reason why W was put in the redeployment pool was because no alternative job had been found when her role became redundant, and this was at least partly because of her homeworking, which was a direct result of her disability. However, the tribunal went on to find that the treatment was justified. During the redundancy consultation, W had been unable to confirm what working arrangements she could maintain, and HMRC had made initial enquiries about transferring her to other departments, but without success. HMRC’s legitimate aim was to reduce the risk of having to dismiss W by reason of redundancy and placing her in the redeployment pool was a proportionate means of seeking to safeguard her employment.

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