'Location, location, location' - Remote Working and Considerations for Employers

Some employees will see a change in their workplace as trivial; others will argue it’s constructive dismissal. The risks, therefore, are potentially high and carrying out a proper process when seeking to amend an employee's workplace is critical to maintaining a harmonious and productive work environment. Whether it involves remote working arrangements or changes to office seating, getting this process right is essential to avoid misunderstandings, grievances, and potential legal disputes. Employers must ensure that expectations are clearly communicated, procedures are fair, and actions are timely to uphold trust and confidence in the employment relationship.

To highlight the importance of getting the process right, we’ve summarised two cases that were adjudicated on by the Employment Tribunal following employer attempts to make a change to employee workplaces. The first involves a security manager who wanted to work in Cornwall, the other an estate agent who claimed they had been demoted after being assigned a different desk. These very different tribunal cases show that when it comes to workplace relocation, whether a few feet or a few hundred miles, getting it wrong can be a costly move for employers.

Nick Kitaruth, a security manager, was dismissed after working from his parents’ home in Cornwall. This was 200 miles from his usual base at the QEII Conference Centre in Westminster. Mr Kitaruth had previously worked from Cornwall, based on an informal verbal agreement with his manager. He believed this agreement would also apply during the quieter August period. Instead, Mr Kitaruth was accused of having acted without authorisation and that he wasn’t fulfilling his role. The result of these accusations was that Mr Kitaruth was dismissed.

Mr Kitaruth argued that his dismissal was unfair and made a claim against his employer at the Employment Tribunal. The Employment Tribunal agreed with Mr Kitaruth and ruled that he had been unfairly dismissed. The Tribunal was explicit in its ruling that the employer’s key failing in this matter was in relation to its investigation process. Specifically, no formal interview was undertaken with the manager Mr Kitaruth said he had an informal verbal agreement with before deciding to dismiss him. A proper investigation would have revealed how informal the arrangement had been and that misunderstandings were likely. The Tribunal concluded that “no reasonable employer” would have proceeded to dismissal without clarifying this crucial point. Additionally, the Tribunal criticised the excessive delays in the employer’s disciplinary process, which took six weeks for an investigation and seven months for an appeal.

This case clearly highlights the need for employers to be clear and thorough in their agreements with employees over remote working (but also in general), and prompt in managing disciplinary action. The Tribunal reached its decision, that the dismissal was unfair, even though it was doubtful as to whether any work was actually carried out during the remote working period. Mr Kitaruth’s actual performance during his remote working period didn’t affect its final decision (although it did rule that the compensation to be paid to Mr Kitaruth would be reduced by 50% as a result).

Despite the 50% reduction in the compensation to Mr Kitaruth, his employer suffered financial and reputational damage for its failure to follow a proper process.

The judgment can be read here: N Kitaruth v OCS Security Ltd: 2202013/2024 - GOV.UK

In the second case, a senior estate agent successfully claimed constructive dismissal after being assigned to a less prestigious desk in his office. Nicholas Walker argued that being moved from the “back” desk, which was traditionally reserved for the branch manager, to a more central position was a symbolic demotion.

Mr Walker claimed this was a constructive dismissal and, after submitting his claim, the Tribunal agreed that the desk assignment could reasonably have been viewed as a demotion. Importantly though, it found that the employer’s handling of the situation damaged the trust and confidence required in an employment relationship. Mr Walker’s compensation was later decided to be £21,411.29, and the Tribunal confirmed that it saw no reason for a reduction in the value of his compensation for contributory fault (i.e. his contribution to his own dismissal). Mr Walker did not raise a grievance (which would typically be expected in this situation). However, his employer had threatened him with disciplinary action after he raised his initial dissatisfaction with the change in desk. The Tribunal could not see how, in those circumstances, it was reasonably open to Mr Walker to then raise a grievance.

The judgment can be read here: Mr_N_Walker_-_v_-__Robsons__Rickmansworth__Limited_-_3311699-2023__-_Written_REASONS.pdf

• Clarity: Whether it’s remote working arrangements or office seating, employers must ensure that expectations are clearly communicated (preferably in writing) and understood.
• Sensitivity: Consider cultural sensitivities, particularly for protected characteristics such as gender or religion, but also for symbolic indicators of status within the organisation.
• Fairness: Misunderstandings can happen, but clear procedures for airing grievances or approving working arrangements, and responding to concerns by fully investigating issues, can avoid unfair dismissal claims.
• Timely: Long delays in handling grievances or appeals can compound disputes and reflect poorly in Tribunal proceedings. Employers should set a reasonable timeframe and stick to it.