Mr P Corke v Department for Transport — 2021

The Claimant, Mr P Corke, applied in April 2022 to work from Luxembourg. The tribunal accepted that, although he used the Respondent’s Working Remotely Overseas Policy form, the documents he sent were also a statutory flexible working request: he expressly said that he was making a statutory request, identified the proposed start date, and explained the effect of the change. On that basis, the tribunal found that the application complied with section 80F(2)(a) of the Employment Rights Act 1996.

The central issue was whether section 80F(1)(iii), which refers to where, as between home and a place of business, the employee is required to work, can extend to a home outside the UK. The tribunal held that Parliament intended “home” in that provision to mean a home within the UK. It relied on the structure of the Act, the absence of any express overseas-working provision, and the practical consequences of overseas contractual homeworking, including jurisdiction, tax, legal and security issues. On that basis, the Luxembourg request did not fall within section 80F(1)(iii).

If it had been wrong on that point, the tribunal said the Respondent would have refused the request because it considered that the grounds in section 80G(1)(b)(i), (v) and (vi) applied, namely burden of additional costs, detrimental effect on quality, and detrimental effect on performance. In that alternative scenario, the tribunal would also have found that the request was not dealt with in a reasonable manner because the refusal letter did not clearly explain why the statutory request had been rejected. The operative result, however, was that the claim failed because the request was outside section 80F(1)(iii), so no compensation or other remedy was awarded.