Elizabeth Wilson was fighting back tears. A manager earning £140,000 a year at the Financial Conduct Authority, she was in a meeting about her application to work from home full-time and felt she had a good case.
A long-standing employee of the regulator, having joined in 2005, she had started working from home just before the pandemic lockdowns in March 2020, and felt she no longer needed to go to the FCA’s state-of-the-art office in Stratford, on the site of the Olympic Park in east London. She argued that through online tools such as Zoom and Teams, she was communicating easily with her team of 14.
Crucially, her performance record had been exemplary while working from home. But in the meeting with her manager, Hannah Lipscombe-Mitchell, Wilson became stressed and tearful when she realised she was not going to find out immediately whether her application had been successful.
Instead, Lipscombe-Mitchell started a discussion about her request, which deviated from the policy the FCA had introduced after the pandemic to require staff to spend 40 per cent of their time — about two days a week — working in the office. Even though the manager floated a compromise idea of office attendance of, say, 10 or 20 per cent, Wilson was not inclined to listen.
Two days later, she was told her application had been rejected.
Although Lipscombe-Mitchell acknowledged that Wilson worked well at home, she feared that a continuation of her WFH could have a “detrimental impact on performance”. She also reckoned that, if Wilson came into the office, it would be easier for junior staff to talk to her.
That private meeting took place a year ago, but has now blown in to the open after Wilson took her case to an employment tribunal to appeal against the decision.
In a ruling that has sent ructions through companies across the UK, she lost.
The recent publication of the judgment, and the arguments on both sides of the case, goes to the heart of the post-pandemic debate. Nearly four years after the first Covid lockdown, bosses and staff are still wrestling with these questions. Are office workers — particularly managers — more effective than those staying at home? And to what extent can companies enforce their back-to-the-office policies?
Only last week, Bank of America sent “letters of education” to US-based staff who had not returned to the office, warning them to do so within a fortnight or face “disciplinary action”.
The judge in the FCA case, Robert Richter, sided with the employer and said remote working was not as good as being in the office for “fast-paced interplay of exchanges” in meetings or for “non-verbal communication”.
The case is particularly significant as the FCA is a large employer, with about 4,000 staff, and it is a quasi-public body. While funded by the firms it regulates, its chief executive, Nikhil Rathi, is appointed by the Treasury. The most senior staff at the regulator are expected to be in the office more often their juniors, about 50 per cent of the time, although Rathi, who is paid around £455,000 a year, is thought to attend the office most days.
Wilson’s status as a high-performing mid-to-senior manager is also regarded as significant. This makes it, in the words of Keystone Law’s Richard Fox, a “paradigm case” that will be cited in other employment tribunals. Fox said: “I hear from junior people who don’t like being told you can just phone up to talk to your line manager any time you like, because they feel uneasy and reluctant to do so. And I hear employers who are saying, ‘We the seniors are coming in and the juniors are coming in, but the middle ones need to come in as well’. ”
The case
Wilson, a mother living in London, is an intensely private person who has had a low public profile until now. She did not respond to requests for comment, and in her case against the FCA she gave no reason why she wanted to work from home full-time. She has not cited a commute, childcare duties or any health issues. From that, it can be concluded perhaps, that she simply likes it better than going to the office.
She pointed out that she had worked remotely before the FCA told her to return and had 22 positive references from colleagues proving that she was doing so effectively.
She also argued that her role was to manage a team of people who were not all based in London — one worked in the Edinburgh office — and that the FCA was becoming increasingly “agnostic” about hiring staff at its London, Edinburgh and Leeds bases. If the regulator was not concerned about which city staff work in, how could it object to one employee choosing to work at home?
Lipscombe-Mitchell, according to the judgment, said that while Wilson’s work was good, there were six reasons why it would be better if she was in the office. Wilson would be better at meeting and welcoming new members to the team, she argued, particularly during “department day” when Lipscombe-Mitchell wanted staff to spend that day together. Further, by working from home, she would be less effective in internal meetings, such as the weekly “cascade meeting”, and leadership sessions where senior bosses met to discuss key issues. She would also perform better if she turned up in person to events such as conferences, and be more effective at in-house training.
Also, the FCA argued, senior managers were required to enforce the regulator’s rules about working in the office 40 per cent of the time. How could she do that properly when she was not doing so herself?
Wilson’s retort was that there was no clear evidence that she would have performed better in the office. Besides, she said, the FCA building did not always have enough rooms to hold face-to-face private meetings, and even the bigger ones were not sufficiently large for everyone to attend the “cascade” events.
Working practices at the FCA have been a focus in the past. After Rathi arrived at the regulator in the autumn of 2020, he pushed through changes to the 77 pay ranges and even faced a strike.
The two sides’ arguments are likely to resonate with workers and managers on both sides of the debate. While few such cases go to a tribunal, behind the scenes, lawyers are busy dealing with similar disputes.
A number of employers are being more supportive than the FCA appears to have been, but some lawyers paint a darker picture. Chris Hogg at Bloomsbury Square Employment Law, said: “Firms know their employees have made arrangements to make it difficult to work in an office — and sometimes, if they don’t want an employee any more, they will require them to return to the office as a means of forcing them out of the business.”
That was clearly not a factor in the Wilson case. In fact, she continues to work at the FCA. The way in which she brought her case over flexible working seems to suggest that her intention was not to walk way from her employer. The monetary compensation for an upheld complaint is just eight weeks, capped at £648 a week, and judges rarely rule against employers if they argue that there is a detriment to them. These are cases usually fought on technicalities, and Wilson was awarded the minimum of one week’s pay over the FCA breaching the strict timetable to hear her complaint. It seems she wanted to make a point of principle.
As for the judge, he acknowledged in his judgment: “This is a case which raises a key issue in the modern workplace and which will no doubt be the subject of continued litigation.”
