We wrote in March about the Employment Tribunal (ET) case of Wilson -v- Financial Conduct Authority, in which the ET held that the refusal of a flexible working request to maintain remote working was lawful.

In that case, Ms Wilson, a senior manager, asked to work from home 100% of the time, while her employer, the FCA, wanted her in the office for 40% of the time. The ET essentially held that Ms Wilson's line manager had carefully analysed the facts and was reasonable when relying on tasks like welcoming new starters, providing training, supervising direct reports, and attending in-person events as justifying a need to work in the office for some of the time. Ms Wilson’s claim therefore failed.

Well, the ET has just heard another case concerning a request to work from home on a permanent basis: Mr P Ah-Thion -v- Cloud Imperium Games Ltd.

The case

This case is different to Ms Wilson's in that Mr Ah-Thion, the Claimant, made the request to permanently work from home as a reasonable adjustment for his disability. The Claimant was employed as a Senior Programmer since 2018. When he joined Cloud Imperium Games, the Respondent, he told them that he had autism spectrum disorder (ASD).

The Claimant worked from the office until the pandemic, when he and all his colleagues worked from home. It was only when the Claimant started to work from home that he realised how much he struggled with working in the office, which he attributed to his ASD. The Respondent suggested it had some concerns about the Claimant's performance when he worked in the office, but it said that the Claimant's performance improved since he started working from home. Importantly, none of the Respondent’s alleged performance concerns were well-documented.

In 2021, the Respondent decided that they wanted all their employees to return to the office. In addition, it was closing its original office and moving to a new one in Manchester. The Claimant was therefore placed at risk of redundancy.

During his consultation meeting, the Claimant asked to work from home on a permanent basis, but the Respondent very swiftly refused his request. During a second meeting, after the Claimant confirmed that he would not be able to commute to Manchester or work in the office, he was made redundant.

The Claimant brought claims in the employment tribunal alleging that the Respondent discriminated against him and failed to make reasonable adjustments. The ET agreed and the Claimant succeeded with both claims.

The outcome

The ET said that the Respondent did not justify why it needed the Claimant to work in the office in order to monitor his performance or for the Claimant to perform his management and supervisory role as a Senior Programmer. It found that the Claimant could have been given clear performance targets if the Respondent had concerns, and in fact, the Claimant performed better at home anyway. With the ET finding that working from home was hugely beneficial for the Claimant, and very easy for the Respondent to implement, it held that the adjustment should have been made and that the Claimant's dismissal was discriminatory.

The Respondent in this case tried to argue that the Claimant was responsible for similar things to Ms Wilson, such as training and supervising direct reports. However, the ET commented that, if any business were able to successfully implement working from home, a technology company would be.

In a separate remedy hearing, the Claimant was awarded £27,748.75. The award might have been even higher, but the Claimant managed to find a replacement role which was fully remote and better paid.

Key takeaways for employers

As employers continue to move away from permanent homeworking, this case demonstrates some of the pitfalls of treating all employees the same. If working from home alleviates a number of disadvantages experienced by a worker with a disability, then it might be a reasonable adjustment, even on a permanent basis.

When balancing the needs of an organisation against the impact of discrimination, the employer will need to provide strong justification for why homeworking isn't appropriate. With advances in technology and the accommodations made by organisations during the pandemic to enable homeworking, this justification needs to go beyond a mere perception that people are more productive in the office. 

We'll be interested to see how the case law develops on this subject, and it’s worth considering what conclusion the ET would have reached if the Claimant wasn't disabled but brought an unfair dismissal claim. Would the Respondent have been obliged to consider the possibility of homeworking as a means of avoiding redundancies caused by the workplace closure? And if so, how much deference would the ET have shown to the Respondent's justification for working from the office? We're not convinced that the dismissal would have been unfair in that case, but the ET's comment on the ease with which the Respondent could have implemented homeworking does create some doubt.