In this article, we consider the risks to EPLI Insurers with the introduction of Hybrid Working Models.
Since 2020 and the COVID-19 pandemic, employers were forced to adapt, and many employers had to adopt flexible working arrangements to allow employees to work from home to conform with government regulations. With many employers now moving to returning to pre-COVID ways and some instructing employees to attend the office full-time, employees are questioning why things cannot stay the way they are and issuing claims in the employment tribunal.
In 2024 alone, there were 62 ‘remote working’ cases in the Employment Tribunal. This was an 11% increase on the previous year. Whilst figures for 2025 are yet to be released, we suspect the number has increased once more. In the face of an increasing number of employment tribunal claims referencing ‘working from home’ adaptations, employers and their EPLI Insurers will face increasing challenges and risks as tribunal caselaw shows.
The Case
Wilson v Financial Conduct Authority (FCA) 2302739/2023
(Written reasons relating to the Judgment - released 20 November 2023).
The Facts
At the start of the COVID-19 pandemic, the FCA instructed all employees to work from home in line with government guidelines. In December 2022 following the easing of the pandemic restrictions, the FCA implemented a clear policy requiring staff to work in the office for 40% of their time (2 days a week in most cases). The remaining 60% could be worked remotely. Senior leaders were expected to attend the office 50% of the time, although this did not include the claimant.
Shortly after the ‘40%’ policy was introduced, on 9th December 2022, the claimant decided to make a ‘flexible working’ request. The request the Claimant made asked if she could work from home 100% of the time. The FCA rejected this request with sufficient reasoning, explaining that the claimant’s role was as a ‘senior manager’ and that she had responsibilities that she would be unable to conduct whilst working remotely. The claimant appealed this decision and this was rejected. The claimant then took the matter to an employment tribunal as she believed the decision to reject her flexible working request was made on the grounds of ‘incorrect facts’ and that the time taken to respond to her request was unacceptable.
The decision letter dated 02 March 2023 laid out the respondent’s refusal but also included lines such as:
‘I recognise you have performed very well during the period when you have worked from home and have built effective relationships with colleagues despite not meeting them in person’.
The letter went on to document the reasons for the refusal. The FCA had decided that the Claimant’s role as a senior manager was unsuitable to work from home 100% of the time and that this would have a detrimental impact on the quality and performance of the Claimant’s work, which included:
- Meeting new members of staff
- Internal training, supervision and departmental needs where a line manager’s visible presence can provide structure
- Attendance at in-person events, conferences and meetings
- Attendance at weekly ‘Cascade’ meetings where team success and individual success is acknowledged
- Leadership sessions where managers meet to discuss key topics
- ‘Department Day’ where the management team will spend the day together, discussing topics and meeting with non-managerial members of staff to allow them the opportunity to discuss/ meet new managers and staff.
The Employment Tribunal Hearing
The tribunal found that the respondent had failed to notify the claimant of its decision or respond to the claimant’s flexible working request within the required period of time. Therefore, it awarded one week’s pay (£643) to the Claimant.
However, in respect of the second part of the complaint that the flexible working request was denied on the basis of ‘incorrect facts’, the Tribunal decided that the flexible working request was considered appropriately; and the reasons given for its refusal were sufficient and based on the facts before the respondent. The claimant was therefore not successful and was not awarded any compensation for the second part of her complaint.
Relevance and Conclusion
Most clients seeking employment backed insurance products are advised to take legal advice and to implement adequate policies. The respondent implemented its new policy after a global pandemic had shocked the world and forced employers and employees to adapt their working arrangements to remote working so that businesses could remain open.
This case confirms that since the COVID-19 pandemic, the number of employment tribunal cases including ‘remote working’ complaints are increasing and ultimately will be costing businesses a significant amount of money, likely claimed back through their insurance products.
Equally, this case demonstrates the importance of responding to flexible working requests promptly. Whilst the tribunal found the respondent’s flexible working decision was sound in this case, the respondent was still found to have failed to respond to the flexible working request in time, costing it the modest sum of £643.
To summarise, the increase of employment tribunal cases including ‘remote working’ complaints are rising and they have been since 2021. Business insurance premiums have also continued to increase and will likely do so for the foreseeable future.
It is important that businesses take the necessary steps to update their policies in respect of flexible/agile/hybrid working and notify staff of the change as soon as possible. In this case, the respondent’s efficient work in advising employees of the change in policy is what ultimately saved them from a huge claim on their insurance policy.