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January 28, 2025
Many companies, including Amazon, Boots and JP Morgan, are returning back to the pre-Coronavirus format of employees being in the office full-time. This is a step further from the last push that saw employees being told that they must come in at least 3 days a week – you can read about this here.
The former chief executive of Marks and Spencer and Asda, Lord Stuart Rose, also recently caused controversy by suggesting that working from home reduces productivity and that there is a link between working from home and the ‘general decline’ of the UK economy.
Working arrangements can throw up tricky legal issues as well as being an emotive issue for employees. They can also lead to difficulties with recruitment and retention if employers don’t strike the right balance or get their communications wrong.
Can employers insist that employees return to the office?
If an employee’s contract refers to an office or central place of work being their normal place of work, employers might argue that an arrangement for working remotely was a temporary necessity rather than a contractual change and decide to revert back to their pre-Covid arrangements. However, given the amount of time passed since the lockdown restrictions were imposed, it’s likely that employees will argue that through custom and practice over the last few years, their contractual place of work has become their home address. Other contracts may already contain an express hybrid working clause, or even a fully remote working clause.
For an employer to change the terms of an employment contract, the starting point is that this can only be done with the agreement of the employee after a period of consultation with affected staff, and on reasonable notice, so any potential concerns can be identified and considered. Employers could also consider introducing a phased and gradual return in the first instance to ease staff back.
These documents may set out circumstances where an employer can bring a homeworking or hybrid working arrangement to an end. In practice, most policies are non-contractual, so they don’t override the employment contract. Either way, enforcing these terms without consultation can have its difficulties, as to terminate an arrangement which has been working well without good reason risks breaching an employer’s contractual duty of “trust and confidence”, which could lead to constructive unfair dismissal claims.
There is also a potential risk of a discrimination claim – for example, where a homeworking female employee is responsible for childcare, or where an employee has a disability which is alleviated by being able to work from home.
Whether you have a contractual right to require office attendance or not, we would advise having sound business reasons for requiring employees to return to a workplace. For example:
Whatever your reasons are, these should ideally be supported by evidence e.g. sales data, productivity information or staff survey results. This will help you during any period of consultation.
If an employer does have the contractual right to require employees to attend the office, a refusal to return can be a potential disciplinary or breach of contract issue. However, what an employer can do about this depends on the reason the employee cites for their refusal, particularly if it is supported with medical evidence.
Flexible working requests
The law on flexible working requests changed in April 2024 – you can read more about this here. Employees now have a day one right to make a request and they are able to make two requests in a 12-month period. Employees may utilise this process to request a contractual change so that their place of work is home.
Employers need to discuss the request with the employee and can only refuse for certain reasons.
Seeking advice
It’s important to seek legal advice if considering changing your conditions around office attendance, as there can be major legal risks as well as risks surrounding recruitment, retention and staff morale if you get it wrong.
Get in touch on 02920 829 120 or rford-evans@darwingray.com today if you need advice on changing your contracts or policies or dealing with a tricky flexible working request.
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