Do we have a right to work remotely?

An employment tribunal ruling published last week on remote working may be the first of many testing how we work now and in the future.

Woman sits writing in her diary - close up


A tribunal ruling published last week, touted as a landmark judgment, found against a senior manager who had been working remotely since Covid and wanted to continue to work entirely from home. The tribunal heard that the woman had submitted a claim for her remote working to be made permanent under flexible working legislation in 2023, arguing that her work had not suffered as a result of working remotely. Her employer, the Financial Conduct Authority, refused the request. It had enforced a two days a week in the office policy. It argued that approving her request “could have a detrimental impact on performance or quality of output, as you will not attend face-to-face training sessions, departmental away days/meetings and you will not be able to provide face-to-face training or coaching to team members or new joiners”. It also mentioned her ability to input into management strategy meetings and be involved in in-person collaboration. On appeal she was told that her request had to take into account the impact on those she managed.

At the tribunal hearing the FCA listed aspects of the woman’s work which it said would be impacted. They included: meeting and welcoming new staff; internal training, supervision and department needs where a line manager has a visible presence; attendance at in-person events, conferences and planning meetings; and attendance at weekly ‘cascade’ meetings.

The judge found that the FCA had considered the employee’s request rather than just blanket refusing it. She acknowledged that this was a difficult area, but said: “In my judgment at the moment there is no right to require an employer to permit that an employee works exclusively remotely but, as is engaged in this case, there is a right that an employer considers such a request in accordance with the statutory scheme”. She added that technology is not yet sufficient to replicate the quick fire exchanges that take place in in-person planning and training events and that remote working limits a person’s ability to observe and respond to the type of non-verbal communication which may be essential for senior managers.

It’s a huge complicated issue and one which will depend very much on the specifics of the jobs involved and on the way technology develops. It will also depend on employers being willing to work harder to include those working in a remote or hybrid way. For instance, do cascade meetings need to be in-person? Can input into strategy meetings only be done in-person – is in-person indeed the best way to go about a strategy meeting? There are so many ways that meetings could be improved, for instance, with greater input before the meeting actually takes place, involving more people. There are a whole number of studies on how to make meetings better, for instance, how to ensure that certain voices and personality types do not always dominate.

The tribunal also shows that there needs to be a bit of give and take. Could people be mainly based at home, but come into the office for specific events such as training or inductions?

>Speaking as someone who has worked remotely or in a hybrid way for many years and managed to feed into strategy meetings with no problem and to deal with rapid-fire demands through instant messaging, I think a lot of this is to do with mindset – currently the mindset is that in the office working is superior to remote working. That is up for debate and depends very much on the task involved. In this particular case, as a senior manager, the needs of the team clearly had to be taken into account too. Research shows the more senior you are the more likely you are to work remotely. While not all jobs can be done remotely, there needs to be more of a level playing field when it comes to flexible working which involves everyone.

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