Currently there is no legal right in the UK for employees to work from home and this will depend on their contract of employment and the terms they have agreed with their employer.
Despite this, the recent decision from the employment tribunal in Mrs A O’Mahony v Priory Healthcare Ltd actually found that a therapist, who had resigned after her employer initiated disciplinary proceedings because of her insistence that she worked from home during the national lockdown, had been constructively unfairly dismissed.
Requesting to work from home
Employees only have a right to request flexible working, which may or may not be granted at the discretion of their employer. There is no right to be granted flexible working and when considering whether or not to grant a request, employers will need to be mindful of the employee’s duties and whether they can be carried out satisfactorily from home.
It must be recognised by employees and employers that some roles simply cannot be performed from home, for example due to the need to be physically present in the workplace, such as a waiter in a restaurant.
The case of Mrs A O’Mahony v Priory Healthcare Ltd demonstrates that employers should always give reasonable consideration to any request from their employees to work from home, especially where health and safety concerns of an employee are raised.
In cases where an employee has genuine health and safety concerns about their place of work and takes reasonable steps to protect themselves in that respect (including refusing to return to their place of work), they should not be subjected to a detriment, such as disciplinary proceedings, deduction to wages or dismissal in consequence of this.
Mrs O’Mahony was employed as a therapist working with patients with eating disorders at the Priory Hospital in Hayes Grove. In March 2020, at the beginning of the pandemic and the first national lockdown, O’Mahony refused her employer’s request to continue attending her place of work (the hospital), voicing her concerns about the risk of contracting or spreading the virus among vulnerable people.
O’Mahony sought to carry out her duties as a therapist from home, arguing that she was capable of fulfilling her role in this manner as she had previously operated her own private therapy practice from her home and had the necessary facilities available.
The request was however repeatedly rejected by the hospital on the grounds that it needed to preserve patient confidentiality and a remote working arrangement could not facilitate this. This led O’Mahony to submit both grievances and a complaint with the Health and Safety Executive.
Following this, the hospital initiated disciplinary proceedings against O’Mahony and made deductions from her wages due to her refusal to attend the hospital.
Consequently, she resigned and brought claims against her employer in the ET. The claims included both ordinary and automatic constructive unfair dismissal on the grounds that she made protected disclosures to her employer and the HSE (ie, whistleblowing) and she had refused to return to work due to concerns over her health and safety in the workplace. She also made further claims that she has been subject to detriments as a consequence of her protected disclosures.
The whistleblowing detriment claims ultimately failed on the basis that the detriment suffered by Mrs O’Mahony did not occur because of her protected disclosure. The claims for constructive unfair dismissal and automatic and unfair dismissal in respect of health and safety concerns were however both upheld.
Ultimately, the ET found that the hospital had breached the implied term of mutual trust and confidence that must exist between employees and employers by withholding salary and initiating disciplinary proceedings because Mrs O’Mahony had refused to return to the hospital due to her reasonable belief that it was dangerous for her to attend the workplace.