What's happening and what does this mean for you?
Although this judgment was issued in 2021, given the recent focus on entire industries asking for a mass return to the office, we thought it wise to review previous case law.
Introduction
Mrs J Follows, employed by Nationwide as a Senior Lending Manager (SLM) on a home working contract, was unfairly dismissed and discriminated against when she was made redundant after failing to return to the office on a full-time basis.
London Central Employment Tribunal found that Mrs Follows was unfairly dismissed, indirectly associatively discriminated against, and indirectly dismissed on the grounds of sex.
Background
Mrs Follows was employed in 2011 on a home working contract, which only required her to attend the office for meetings, 2 or 3 times a week. This arrangement allowed her to care for her elderly and disabled mother who lived with her.
In October 2017, Nationwide decided to reduce the number of SLM from 12 to 8 and as part of this process, all home working contracts were revoked. The rationale, as explained by a commercial director of the building society, argued that it was 'essential' that managers in the business be 'accessible and visible' and that junior staff had raised concerns about a lack of physical supervision. It was further stated that 'we felt strongly we needed a greater presence in the office. It's so much better if they are sitting next to each other’ and 'informal day to day supervision' was 'lacking'.
Despite Mrs Follows routinely receiving high ratings and appraisals during her employment, as well as being considered a ‘top performer’ by her bosses, she was invited to an initial consultation meeting. At this meeting, she was advised that all home-based roles would be placed at risk of redundancy. During the Tribunal hearing, the building society was forced to acknowledge that prior to a redundancy process being undertaken, 6 employees had volunteered to leave. Controversially, a number of these employees were then approached and asked to continue their employment, with a promise that they would receive a redundancy payment irrespective of how their employment ended in the future. The building society then approached Mrs Follows and began redundancy consultations.
The first consultation meeting occurred on 1 November, and although there were informal meetings in the meantime, the second consultation meeting did not occur until 15 December. Although Mrs Follows had repeatedly asked for meetings, updates or even a conversation on how her role could be maintained, the building society failed to adequately engage.
A decision was made to terminate her employment on 15 January, and she subsequently raised a grievance. Her appeal was rejected on the basis that she had failed to provide any counterproposals for redundancy. Although most employers may not have a separate policy on redundancy, Nationwide did. It was found during the Tribunal hearing that there was no requirement under this policy for an employee to provide counterproposals for a redundancy. Despite this, they justified dismissing the appeal and making Mrs Follows' position redundant because she failed to do so.
Judgement
The Tribunal found that the building society had not proven that the reason for dismissal was redundancy. Given that 6 staff had volunteered to leave, the numbers to be selected - 4 - had been reached, and there was no further requirement to reduce the number of SLM.
Furthermore, the Tribunal concluded that the reason why the redundancy process continued was because the building society wished to delete the SLM homeworking positions. This formed part of its explicit rationale. This was not the same as reducing the number of SLMs.
Regarding home working, the building society was unable to provide any evidence as to why all senior members of staff should work from the office. It was based on a view amongst senior management that homeworking posts should be deleted, it would be ‘better’ to do so, rather than based on any analysis of the business need for on-site SLMs or any consideration of an alternative approach. The decision was taken without any real understanding of how any of the employees operated whilst at home or their reasons for doing so.
Once it was agreed that the decision to dismiss was unfair, the Tribunal commented on the discriminatory treatment that Mrs Follows suffered. The building society argued that they had a legitimate aim, “a need to provide effective on-site and managerial supervision and support to more junior staff following a reduction in SLM headcount and the change in the nature of the lending business”. They failed to consider their employee’s circumstances, alternative suggestions, or any substantial evidence before making the decision to remove all home-working contracts. This lack of consideration resulted in the building society failing to confirm that they had used proportionate means to achieve a legitimate aim. A few junior employees commenting that they required more supervision, in an isolated team meeting, was not substantial enough to change Mrs Follows' terms and conditions.
Mrs Follows was also successful on the grounds of indirect sex discrimination, this is because the Tribunal relied on national statistics which confirmed that women were more likely to be the primary caregivers for elderly relatives. The building society failed to consider this when they chose to ask all SLMs to return to the office, they failed to consider alternatives to the role or even reasonable adjustments. Had they engaged in meaningful consultation, attempted to find a resolution, or even offered more solutions to Mrs Fellows, they would have had a greater chance at defending their position.
This should serve as a cautionary tale, asking employees to return to the office because it is simply “better” to do so, without any evidence to justify your reasons, could land you in front of an Employment Tribunal.
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