As the employment landscape continues to shift in the post-pandemic era, employees and employers can find themselves at odds when it comes to expectations of flexible and remote working. The issue was brought to light at Employment Tribunal (ET) proceedings centred on a woman's request to work from home (Miss Wilson v Financial Conduct Authority).

The woman had been employed by a financial regulator since 2005. Her initial contract indicated that her normal place of work would be at a physical office location. This changed in early 2020 when there was a recognition that the woman would work from home for 'health reasons'. These were not elaborated on but, according to the ET, appeared to be connected with growing awareness of COVID-19.

Working practice changes took place with most of the regulator's staff, in accordance with government guidance not to attend the office prior to lockdown measures taking effect. These working practices were reviewed following the easing of pandemic restrictions, which resulted in a policy that staff should attend office locations for 40 per cent of their working time, with 60 per cent of their hours to be worked remotely. This policy was in place when the woman's work from home request came up for consideration.

Whilst her employer recognised that she had put in a strong performance when working from home, the application was turned down on the basis that working remotely would have a detrimental impact on the quality and performance of her work going forward. This would be caused by her not attending face-to-face training sessions and departmental meetings and away days, and by her inability to provide face-to-face training or coaching to team members or new joiners. Working from home would also negatively affect her ability to input in management strategy meetings and be involved in in-person collaboration.

The woman lodged an appeal against the decision but this was rejected. She then launched an ET claim, arguing that her employer's rejection of her application was based on incorrect facts, i.e. the assertion that if she worked entirely from home, it would have a detrimental impact on quality and performance.

In rejecting the woman's claim, the ET found that it was right for the employer to have identified weaknesses with remote working, explaining that many people who work using technology find that it is not well suited to the fast-paced interplay of exchanges which occur in situations such as planning meetings or training events, when rapid discussion can occur. Remote working also limits the ability to observe and respond to non-verbal communication which forms an important part of working with others. The ET also observed that the case raised a key issue in the modern workplace that would no doubt be the subject of continued litigation.

The woman's additional claim that her employer had failed to communicate her appeal outcome within the decision period required by statute was upheld and the ET awarded her one week's pay by way of compensation.