Does a landmark tribunal ruling really mean a full-time return to the office for home-based workers?

Working from home (WFH) was forced upon many of us during the Covid-19 pandemic - but is it set to become a thing of the past with returning to work from the office being made compulsory?

The practice was, and has been, hugely beneficial for many employees who have continued to work at home, either permanently or in some capacity since all lockdown restrictions were lifted.

But a landmark tribunal ruling does raise the question as to if it is a way of working that employers have to continue to accommodate or tolerate.

You would be forgiven if you thought WFH was going to be a temporary phenomenon when the nationwide lockdown was first announced by the government in March 2020 [1] cited 30.1.24

Both employers and employees experienced both the benefits and challenges of WFH, and subsequently many adopted a hybrid model that combined WFH and working from the workplace.

Research in 2022 revealed most people who took up homeworking because of the pandemic planned to both work from home and in the workplace (‘hybrid work’) in the future [2] cited 30.1.24

The findings from the Opinions and Lifestyle Survey showed more than 8 in 10 workers who had to work from home said they planned to hybrid work in the future.

The most common hybrid working pattern that workers planned to use was working mostly from home, and sometimes from their usual place of work.

The impact of WFH and hybrid working on businesses is not clear-cut. It is a topic that has been much debated with the pros and cons being highlighted to support each viewpoint.

Some of the potential benefits of WFH and hybrid working include:

• Reduced costs for office space, equipment, and travel
• Increased flexibility and autonomy for workers
• Improved work–life balance and satisfaction
• Enhanced diversity and inclusion
• Lower environmental impact

Some of the potential drawbacks of WFH and hybrid working include:

• Reduced communication and collaboration
• Decreased creativity and innovation
• Increased isolation and stress
• Diminished trust and accountability
• Blurred boundaries between work and home

Employers will, obviously, have different preferences and policies regarding WFH and hybrid working. What is ideal or best for each business will inevitably vary and be dependent on its sector, size, culture and goals.

Some organisations have readily embraced WFH and adopted hybrid working as a way to adapt to the changing needs and expectations of staff and customers alike.

Others businesses meanwhile may prefer a return to the traditional way of working with employees based in the office setting, but may have been met with some resistance or unwillingness by employees reluctant to do so.

A recent tribunal ruling focused on if an employee had a right to work full-time from home. The ramifications from the case are worth looking at in more detail.

A manager working in the financial sector is reported to have suffered a significant tribunal defeat in her quest to force her employer to let her work entirely from home [3] cited 30.1.24

The employee submitted a flexible working request, asking to work away from the office. The request was initially refused, and rejected again following an appeal

The manager is said to have been working entirely from home since the beginning of the pandemic in 2020.

However, when restrictions were eased, the employer eventually decided on a policy of staff working two days a week in the office.

The employee insisted she had worked effectively from home and been a high performer, and that attending the office was not necessary to the success of the role.

The tribunal considered the claimant’s assertion that the decision by the employer to reject her request was based on ‘incorrect facts.’

The court disagreed, saying that the company was ‘right to identify weaknesses with remote working’, adding: ‘I am therefore satisfied and find therefore as a fact that the decision is not based upon incorrect facts.’

The inevitable question as to if the ruling now signals the death knell for working from home, is a pertinent one. But the simple answer is no.

The ruling does not give employers the green light to automatically reject any WFH request.

Employees can still request to work from home by making a flexible working request [4]  30.1.24

Each case should still be fairly considered by an employer and judged on its merits, facts and circumstances.

By law an employer can still refuse a WFH request, or any flexible working request, if [5] cited 30.1.24

• It will cost too much.
• They cannot reorganise the work among other staff.
• They cannot recruit more staff.
• There will be a negative effect on quality.
• There will be a negative effect on the business’ ability to meet customer demand.
• There will be a negative effect on performance.
• There’s not enough work for you to do when you’ve requested to work.
• There are planned changes to the business, for example, your employer plans to reorganise or change the business and thinks the request will not fit with these plans.

If a request by an employee to WFH is refused then they should be allowed to appeal against the decision.

There are several potential dangers in employers unreasonably turning down any flexible working request.

For an employee, being denied the opportunity to change the way in which they work or the location from where they do so, can have negative impacts on their work-life balance, mental health, productivity, and career progression.

For an employer, rejecting flexible working requests can lead to lower employee satisfaction, higher turnover, reduced diversity, and legal risks.

Some of the legal risks that an employer can face when turning down a flexible working requests include:

• Failing to adhere to the ACAS Code of Practice on flexible working requests can lead to an employee making an employment tribunal claim [
• Discriminating against the employee on the grounds of a protected characteristic, such as sex, disability, or religion, if the refusal is not based on a valid business reason.
• Automatically unfairly dismissing the employee if the dismissal is because they made a statutory request for flexible working.

So, employers should always carefully consider each request and explore the possible benefits and challenges of granting it.

Once an employee has made any flexible working request, the employer still has to:

• Consider the request
• Give the employee an answer within three months
• Give the employee a reason if they refuse the request

Good communication is key and often employers and employees can work together to avoid the problems that can often occur if a request is handled unfairly.

If a request cannot be accommodated rather than simply refusing it, both parties can explore if it may be possible to reach a mutually agreeable solution, such as a trial period or a compromise.

Currently any employee can make a flexible working request if they have worked for their employer for at least 26 weeks and not made another request in the last 12 months.

A new change in the law will mean that from 6 April this year an employee can make a flexible working request from the first day of employment [6] cited 30.1.24

ACAS will produce a new statutory Code of Practice on handling requests for flexible working to support employers and employees through this change and other reforms, which will be introduced.

It is likely that WFH and hybrid working will be part of the legacy of the pandemic.

Any employer who wants all staff to be office-based should be clear on the reason and communicate them clearly to staff. Explain why working from the office is beneficial for the organisation and the employees, and address any concerns or questions they may have.

Importantly, businesses should be flexible and empathetic. Recognise that not everyone may want to be office-based, and offer some options for hybrid or remote work if possible.