Rise in remote work tribunal cases “tip of the iceberg”

The number of tribunal cases relating to remote work are expected to have risen in 2023

The rise in remote working-related tribunal cases over the next few years will represent the “tip of the iceberg” of conflicts sparked by remote work requests and return-to-office mandates, according to an HR consultancy that analyses tribunal figures.

The consultancy, Hamilton Nash, published figures in late 2023 that showed the number of remote-working tribunals jumped by 56% between 2021 and 2022, from 27 cases to 42; in the first six months of 2023 alone, there were 25 cases, putting the year on course for a record high.

Earlier this week, The Guardian reported that many others across the employment law sector expect to see an increase in cases, not least as high-profile cases grab newspaper headlines.

Read more: Employers sustain return to office push

The low number of cases that make it to tribunal is just “the tip of the iceberg” said Jim Moore, the firm’s employee relations expert.

He told HR magazine: “This is really a measure of conflict. What triggered us to do the research was an increase in anecdotal reports across the HR profession that there were tensions and queries in this area. Tribunals are the last resort of escalation, so we’re not seeing all the grievances and disciplinaries behind the scenes.

“We’re still working on refining the statistics for an update [on the number of remote working cases that have reached tribunal] but that trend appears to be continuing; it’s certainly not declining.”

In one recent case, a senior employee at the Financial Conduct Authority (FCA) had a request to work permanently from home justifiably rejected by her employer.

This has been seen as a landmark case for return-to-office policies by some employers, according to Richard Fox, partner at Keystone Law, who told The Guardian: “The FCA case was not binding but employers have felt it is an important case to consider,” he said. “The issue is becoming a battleground and we advise employers to play it very carefully.”

Read more: Forced return to work carries legal risks

Moore added that the FCA had actually been quite accommodating, having already embraced hybrid working with two days worked remotely each week; it had offered the manager an extra day of remote work before the manager filed her claim.

“They had tried to meet her in the middle to give that extra flexibility, but it was the employee who was intransigent. In that case, the employer could show they had a legitimate aim and proportional means of getting there,” he said.

“It shouldn’t embolden employers to say: ‘Right, now it’s open season’ and push back on flexible working or hybrid requests. As always, each case should be considered on its own merits.”

This rings particularly true for employees that might be disadvantaged should their request be dismissed unfairly: Moore picked out, for example, that many more women than men have caring responsibilities, and thus may be more likely to request hybrid or flexible working practices.

He said: “We’re seeing signs of a potential emerging trend there. There’s prior case law that has established that women, sociologically, are more likely to carry the burden of looking after children, for example.”