Policies & Procedures

Work from home – tribunal or opportunity?

Manchester United are the latest employer to mandate a return to the office. But a serious issue may be brewing for employers – the risk of being taken to tribunal.

A recent tribunal between Wilson and the FCA, where Wilson was a senior manager, found that the FCA was justified in turning down Wilson’s request to work from home permanently.

Some of the more breathless reports see this decision as the nail in the coffin of remote working, and a signal for wholesale return to office mandates.

However, beyond the headlines, a closer look sees that the court found that Wilson sought to never attend in person, and that this was incompatible with her senior position. Indeed, the judge was explicit that this was not a blanket requirement and pointed to Commotion Ltd v Rutty, the case which established that blanket refusal of flexible working is unlikely to be justifiable.

Absolutism is often frowned upon by judges, and just as Wilson’s refusal to deviate from 100% home working was a main cause of her tribunal loss, I suspect any employer attempting to enforce 100% in-office working would suffer a similar fate.

Regardless of whether your organisation intends to order staff back to the office, getting to grips with policies around where and how people work should be a top priority for HR teams.

This is especially true if remote working policies were rushed through to cover working from home during lockdowns. A lot of your policies will reflect the attitude of senior leadership. Those resistant to remote work are more likely to see policy as a means of controlling remote workers; those enthusiastic about it more concerned with enabling them. Establishing a balance between the needs of the business and the needs of workers is key – the most successful remote-first organisations still have mandatory meetups. But policies without justification – ‘because we said so’ – are less likely to be supported.

Gartner study found that top performers, women and millennials are least willing to comply with return to office mandates. This should be a concern to any HR team with an eye on diversity metrics, but also to any employer looking to attract the best candidates and retain their best workers.

In 2022 I wrote about Ian Goodfellow, who resigned from Apple when ordered back into the office and immediately walked into a role at Google. Ian was Apple’s head of machine learning, and Apple, normally a product pioneer, has been notably behind the rest of the tech industry in launching its own AI services.

It’s a reminder that top performers always have options. That’s not to say that RTO is a guarantee of only retaining mediocrity. Premium employers will always be able to attract quality.

However, for employers who don’t have that star power (which is most of us), we must accept that we may have more to lose from filling our office space than we gain. Quoting Victoria Short, CEO of Randstad UK: “Organisations digging in and refusing to budge on remote working could face a great deal of pain as a result. They need to keep that in mind, when trying to attract and retain talent.”

Policy exists to protect both employer and employee. It establishes the boundaries for behaviour. Recent examples of employees being terminated for the use of mouse jigglers (I’m reliably informed that an open Excel spreadsheet and some VBA code is a far more discrete option) demonstrate how in some cases the trust between worker and employer has completely broken down. Employers have exceeded what many people would describe as a reasonable degree of privacy for workers, and in response employees have responded with deceit and quiet quitting.

This behaviour is chalked up as a failure of remote working; it’s not. It’s a failure of recruitment (the hiring manager has made a poor decision) and a failure of line management (the line manager hasn’t managed workload and outputs, instead relying on IT to tell them if someone is working or not). It’s no different to seat-filler employees in many offices, who do just enough not to get fired. It’s simply the tools which identify poor performers that have changed.

For me, it’s quite simple. If you’re having to monitor employees to ensure they’re working, you’ve hired the wrong people and given them the wrong work. Furthermore, many of those basing their return to office mandates on ideas of culture and team spirit seem to forget that their office culture actively penalises people leaving their desk and having the type of ‘coffee cooler conversations’ that they’re so eager to restore.  The best employers are those who are focused on opportunities for people to socialise, be creative and innovative – all areas that suffer when people are remote.  So, if you want people to come into the office, look at systems such as DUOME to ensure they can find the best time to be there.

Therefore, it’s your job, as a HR leader, to ensure that policy and procedures are right for your organisation and its needs. Whilst heroic leader types (at all levels) tend to deliver decrees, you have a responsibility to the whole organisation. Putting in place the policies to ensure that flexible working requests (the legal avenue to remote working) are properly considered and actioned, ensuring exemptions for reasonable adjustments, and ensuring monitoring is done in a way that is compliant with an organisation’s ambition to employ the best, not the neediest, are all ways to help steer your workplaces through the change we’re all seeing as technology changes the way we work.

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