Marissa Mayer, CEO of Yahoo, has caused much controversy by telling her workforce that, from the start of June 2013, homeworking (or “telecommuting” in the US) is no longer to be permitted and all employees must report to a Yahoo office “or resign”. The explanation given is that some of the best insights and decisions come from face-to-face interactions and speed and quality are often sacrificed when employees work at home. However, it has subsequently transpired that Ms Mayer’s decision has been driven in part by her discovery from the logs of the Yahoo Virtual Private Network (VPN) that homeworkers aren’t signing into the network as often as others, meaning to her mind that they simply aren’t working hard enough.
It is not clear whether the memo applies only to Yahoo’s US workforce or if it is to be a worldwide policy, and Yahoo UK has so far refused to comment on it. However, from a UK perspective, Yahoo will face a number of legal obstacles if it decides to apply the no-homeworking rule to its employees here.
Firstly imposing this change to their terms and conditions of employment must surely give them decent grounds for claiming that they are being constructively unfairly dismissed. Whilst a Tribunal will not necessarily find in an employee’s favour where his employer has imposed a change of terms and conditions, there must have been a meaningful attempt by the employer to consult with the employee about the change before imposing it. Yahoo’s apparent approach of “accept it or resign” hardly smacks of a proper consultation process, more of a yawning cultural and legal divide in staff management matters between the US and Yahoo’s other jurisdictions.
If it has already decided to get rid of any homeworkers who refuse to make the move back to the office, Yahoo could well also be required to consult collectively about the changes. It is a little-known facet of the UK redundancy collective consultation obligations that they also apply where an employer decides to adopt a policy of dismissing employees who refuse to accept a change to their terms and conditions of employment and it is likely that 20 or more employees will refuse to do so. As with redundancy collective consultation, an Employment Tribunal can make a protective award of up to 13 weeks’ pay in respect of each affected employee who has not been properly informed and consulted about the change to his terms and conditions.
The other more damaging aspect of this case is the possibility that employees could bring claims of indirect sex discrimination. The argument in a case such as this would be that one of the main reasons for homeworking is to try to balance childcare responsibilities, that more women than men have childcare responsibilities, and therefore that women are disproportionately affected by a blanket policy against homeworking. This could be a particularly costly issue for Yahoo given that if this indirect sex discrimination resulted in actual or constructive dismissals, the usual cap on unfair dismissal awards (currently £74,200 per employee) would not be applied. For high earning employees, this could result in very significant Tribunal awards.
And what of the new policy itself? If the true driver for the change is indeed that some employees are (or are perceived to be) slacking off, an Employment Tribunal is unlikely to be impressed or to consider this sufficient justification for defending either a constructive dismissal or indirect sex discrimination claim. Yahoo has the means of monitoring the IT activity of its homeworkers via its VPN and therefore could easily identify those employees who were not pulling their weight. The Tribunal would consider that the appropriate way to respond to the issue is by individual disciplinary action, rather than by imposing an apparent collective punishment. However, if the driver is in fact the rationale set out in the Yahoo memo (bizarre though it might seem either that Ms Mayer has only just reached this conclusion or that it would be voiced so publically by the CEO of a company which makes a fortune from encouraging use of the web as a communication tool), then this would be a more persuasive argument at a Tribunal. The Tribunal would expect to see evidence that speed and quality have in fact suffered on a meaningful scale whilst people have been working at home. This would be more or less impossible to evidence on anything other than an individual basis, especially as these drawbacks seem totally to have escaped Yahoo’s attention until now. In any event, however, the blanket imposition of a homeworking ban, without any consideration of individual circumstances (person or job), is still likely to be highly unpopular with most Tribunals.