REMOTE CONTROL?
Case update: Wicken v Akita Systems Limited (Case No: 2303081/2022) – WFH, performance, and managing a dismissal
A recent employment tribunal judgment in Wicken v Akita Systems Ltd has highlighted the legal and practical complexities of managing remote work in a post-pandemic world. The tribunal found that Mr Ben Wicken, a Technical Director, was unfairly dismissed after a breakdown in workplace relations that included a dispute over attending a meeting remotely.
Whilst not a judgment which is binding on other tribunals, the case offers valuable lessons for employers navigating hybrid working arrangements, performance management, and procedural fairness.
Case Background
Mr Wicken had worked for Akita Systems Ltd, an IT services provider, since 2014 and was promoted to Technical Director in 2020. In early 2022, tensions arose between Mr Wicken and the Managing Director, Mr Boudet, following concerns about Wicken’s leadership and communication style.
Mr Wicken was invited to a meeting with Mr Boudet and an external HR consultant to discuss these concerns. There was a “positive” mediation meeting and plans were made for follow ups.
"As hybrid working becomes embedded in workplace culture, disputes over remote attendance and performance expectations are likely to increase. The Wicken case serves as a timely reminder that flexibility must be balanced with fairness, and that dismissals linked to remote working and perceptions around performance should be handled with particular care."
Mr Wicken requested to attend the third follow up meeting remotely via Microsoft Teams, citing the presence of contractors at his home. The director explained he was “very disappointed” with this request, insisting on in-person attendance. Mr Wicken complied and attended the meeting in person, but described the experience as hostile and confrontational.
Following the meeting, he was asked to produce a personal improvement plan. He submitted a plan, but it was deemed inadequate by the company. Shortly thereafter, he was invited to a “without prejudice” meeting and later dismissed. He brought claims for unfair dismissal and breach of contract.
Tribunal Findings
The tribunal found in favour of Mr Wicken on the claim of unfair dismissal, concluding that:
The dismissal was procedurally and substantively unfair under section 98 of the Employment Rights Act 1996.
The employer failed to follow a fair process, particularly in relation to performance concerns and the handling of the improvement plan.
The decision to dismiss appeared to have been made before the grievance process had concluded, undermining the fairness of the procedure.
The tribunal was not persuaded that the request to attend the meeting remotely was unreasonable, or “blameworthy” behaviour and his financial reward was therefore not reduced.
However, the tribunal rejected Mr Wicken’s claim for breach of contract in relation to notice pay, finding that he had been paid in lieu of notice in accordance with his contract.
Commentary: Managing Remote Work Expectations
This case underscores the ongoing challenge of managing flexible and home working arrangements, particularly for senior staff. While employers may reasonably expect key personnel to attend important meetings in person, the tribunal made clear that blanket refusals to accommodate remote attendance, without considering context, can contribute to an unfair process, and an employee “prioritising” working from home may not be considered “blameworthy” conduct on their part.
Further, where the relationship was already breaking down, the perception of “working from home” was a trigger point, and perhaps symptomatic of a wider concern between senior leaders and employees about culture and working flexibly.
The judgment also highlights the importance of:
Clear communication: The tribunal noted that the expectations around the improvement plan were not clearly conveyed to Mr Wicken.
Procedural integrity: The employer’s failure to properly engage with the grievance process and the apparent pre-determination of dismissal were key factors in the tribunal’s decision.
Proportionality: The tribunal found that the employer’s response to the remote meeting request and the subsequent performance concerns was disproportionate.
Practical Takeaways for Employers
To reduce the risk of similar claims, employers should:
Assess Remote Working Requests Fairly
Consider the purpose of the meeting, the employee’s role, and whether remote attendance would materially affect outcomes.Document Performance Concerns Clearly
Ensure that expectations are communicated in writing and that employees are given a fair opportunity to respond and improve.Avoid Prejudging Outcomes
Maintain an open mind throughout grievance and disciplinary processes. Decisions should be based on evidence and fair procedure.Train Managers on Hybrid Work Protocols
Equip leadership with the tools to manage flexible working arrangements consistently and lawfully.
Looking Ahead
As hybrid working becomes embedded in workplace culture, disputes over remote attendance and performance expectations are likely to increase. The Wicken case serves as a timely reminder that flexibility must be balanced with fairness, and that dismissals linked to remote working and perceptions around performance should be handled with particular care.
If you would like to review your organisation’s approach to hybrid working or need support managing performance concerns, our employment law team is here to help.
