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Why employers should avoid giving notice on the office lease just yet

29 Jan 2021 By Chris Coombes and Raoul Parekh

For some staff, working from home is hell, while for others, it offers them the flexibility to manage other responsibilities and therefore businesses should resist applying blanket policies on office working, say Chris Coombes and Raoul Parekh

Let’s fast forward. It’s September 2021 / May 2022 / June 2023 (depending on how optimistic you’re feeling), vaccines have now been rolled out and the UK government has finally declared that it is safe for everyone to go back to the office. What do employers do? 

The discussion about the future of the office typically focuses on the extremes, with employers falling into one of two camps. Here are two typical examples.

The reluctant flexer

While everyone is working from home, this employer has had some concerns about productivity and the loss of creativity and innovation that comes from in-person collaboration. The CEO has publicly stated that they welcome a full return to office-based working, not least for the social benefits. 

The employer even recently invested in a larger workplace, and remains confident that city centres will return to normal. Once it is safe to return to the office, employees will be expected to work from the office most days, but will have the freedom to work from home 1-2 days a week if they need to. 

The wfh embracer

After some initial teething problems, remote-working has resulted in an increase in productivity and employee morale, as well as lower overheads for the business. Senior management think employees can do their jobs just as well, if not better, from home. This employer has taken the radical decision to close its office permanently – it has already given notice on its lease – and is now offering a fully-remote service. Employees will be expected to work remotely on a permanent basis.  

What both of these approaches have in common is the principle of standardisation – both employers have decided on an approach and are applying it to their entire workforce. From an operational and legal perspective, there is some sense behind this. 

Operationally, having standard policies and practices which apply to everybody requires less management time and can be more efficient. From a legal point of view, employers cannot be accused of directly discriminating against certain individuals or groups of people sharing a protected characteristic if they take the same approach to everybody.

However, often these benefits are illusory. The reality is that people often respond better to more nuanced, individualised treatment. There is scientific evidence for this: Finnish education reform, dietary advice, even the design of cockpits in the US Air Force have all been positively impacted by shifting away from the principle of standardisation towards a focus on what benefits each individual. 

A psychologist who conducted a study focused specifically on the office environment found that giving employees the freedom to personalise their workplace resulted in a 30 per cent boost in productivity. 

How does this apply to employers in 2021? When planning their mid to long-term strategy, employers would be wise to resist applying a blanket policy and instead giving employees some freedom to create their own bespoke working arrangement. Besides the potential benefits to productivity, morale and retention, there are solid legal arguments for doing so. 

Employers who apply blanket policies indiscriminately could expose themselves to claims of indirect discrimination if employees sharing a particular protected characteristic can show that the policy places them at a substantial disadvantage compared to others. For example, a policy which prevents employees from returning to the office could indirectly discriminate against younger people, who are more likely to be living in small flats with cramped working conditions. 

Conversely, requiring employees to return to office-based working could indirectly discriminate against older employees or women, who are statistically more likely to have childcare responsibilities. Employers who give their employees some control over where, when and how they work should see those sorts of claims fall away.  

To put it simply: some employees will welcome a permanent shift away from office-based working; others will be desperate to return to the office. Matthew Syed, in his book Rebel Ideas, puts it this way: “We are all different from one another. We have different physical dimensions, but also different cognitive traits, strengths and weaknesses, experiences and interests… if we differ in important ways, enlightened systems should, where possible, take account of this variation.” 

Much of the discussion about the future of the office after the pandemic has focused on whether employers will permanently shift away from office-based working, or whether they will rush back to the city. Perhaps this is missing the point: wouldn’t it be better for employers to ask each employee what works best for them?

Chris Coombes is an associate and Raoul Parekh is a partner at specialist employment law firm GQ|Littler

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