Can employers insist on staff returning to the office?

Ed Mills and Anna West outline the legal risks associated with businesses forcing employees back to the workplace

Can employers insist on staff returning to the office?

As Covid restrictions ease, employers and employees are thinking about how far they want to go back to pre-pandemic working arrangements. Many employers have decided against a return to business as usual. Some are abandoning the office altogether and switching to full remote working, while others are moving to hybrid working, with staff splitting their time between office and home.

But some employers want their staff back in the office when restrictions are lifted, and life to return to normal. And not all employees will be happy about this, for a variety of reasons. For example, the impact on work-life balance, altered childcare arrangements or a longer commute having moved further away. 

Legal issues

The employment contract will usually specify the office as the place of work, but this could have been varied verbally. If managers gave employees assurances about how they would work following the pandemic, and employees relied on these to make personal changes, such as moving away, then they may be able to claim that they have a contractual right to continue to work from home, although this is likely to be difficult to prove. 

It is possible that, regardless of what the employment contract says, a badly handled insistence on returning to the office could breach the implied duty of trust and confidence. This would allow the employee to resign and claim constructive dismissal, including unfair dismissal if they have at least two years' service. However, this type of claim is unlikely to be viable except in narrow circumstances.  

If the employee has six months' service, they can make a statutory flexible working application, which, if agreed, results in a permanent change. The employer can refuse the application on certain specified grounds, including impact on quality of work or ability to meet client needs. 

Breach of the statutory flexible working request rules may lead to compensation of up to eight weeks' capped pay (currently £544 per week). 

An employee who is refused a flexible working request made for childcare reasons (whether a statutory request or not) may have an indirect sex discrimination claim, on the basis that a requirement to work in the office has a disproportionate impact on female employees, who are more likely to have caring responsibilities. Discrimination compensation is uncapped and includes a payment for injury to feelings. 

To defend a sex discrimination claim, the employer needs clear and justifiable reasons for refusing the flexible working request, ideally backed up by evidence. If remote working has gone well during the pandemic, it may be difficult to justify refusing for it to continue afterwards, although arguably there is a difference between staff working remotely on a temporary basis in a health emergency, and doing so permanently. 

Employers may have genuine concerns about the long-term impact on the business of permanent remote working, for example around employee engagement, collaboration or client service. Issues such as this could justify refusal, and ideally would be backed up by evidence. 

If an employee wants to work remotely due to a disability, then the employer would have to consider this as a reasonable adjustment, together with medical evidence and consultation with the employee. Any refusal would need to be objectively justified.

Other considerations

Employers who have objectively justifiable reasons for requiring employees to work in the office and follow a fair and reasonable process should be able to avoid the legal claims outlined above. 

The bigger question for many employers is likely to be whether a requirement to work in the office will impact longer-term retention and recruitment. A recent survey by YouGov found that 57 per cent of workers wanted to be able to continue working from home all or part of the time. 

The government is said to be considering a consultation on flexible working becoming the default option from day one. This would not create a legal right to work from home, but would put the burden on the employer to prove that there are good reasons not to do so. Employers may also be required to publish their flexible working policies in future (following proposals in a 2019 government consultation).

Time will tell how effective and feasible it is for businesses to operate large scale remote working on a long-term basis. It is possible that in the future we could see more employers reverting back to old patterns, with remote working becoming less usual. For now though, it seems that many businesses are willing to see whether working arrangements born out of the pandemic have a permanent future. 

Ed Mills is a partner and head of employment and Anna West is a knowledge counsel in the employment team at Travers Smith