Companies including Boots, Amazon, J.P. Morgan, Citigroup and ASOS, and JP Morgan have started to mandate a return to the office.
Some employers are citing concerns such as low productivity and engagement from its workforce. There is a backlash. Some employees are resisting, refusing to accept their employer’s reasoning, and there has even been an incidence of industrial action in the public sector.
Can an employer insist on a return to the office?
The employment contract
The starting point as always is to review the employment contract along with any amendments or variations. The contract will state the normal place of work – it will be helpful to the employer’s case if this states the office premises. If that is the case, the employer can make a reasonable request for its employees to attend the office for a certain number of days a week in accordance with contractual terms. Failing to comply may result in disciplinary action. This can be a challenge when an employee believes he or she can be just as effective working from home.
Consult employees of changes
If the contract is not clear – or if there has been agreement that an employee can work from home which the employer now wants to change, the employer will need to consult with the employee with the aim of reaching agreement to change the contractual terms. If many employees are involved, this may require collective consultation with representatives.
Employers may need to consider being flexible or offer an incentive to encourage the employee to agree to the change and return to the office for the days the business requires. This might mean to flexibility around core hours or to allow school pick up and drop off times.
Custom and practice
Employees might argue that the right to work from home has become contractual through custom and practice. If they can show that the new working arrangement has been in place consistently, is well established and known, they might have a good chance of successfully arguing that their right to work from home is an implied contractual term.
Fire and re-hire
If an agreement cannot be reached, as a last resort a business might consider fire and rehire, but with anticipated reforms to the law, it runs the risk of both employment law claims and reputational damage.
Flexible working requests
It is likely an employee will file a flexible working requests. Since April 2024, employees have had a day-one right to request flexible working Some businesses will automatically reject a request and run the risk of a tribunal claims for constructive dismissal or discrimination. Others will review and consider the request and still say no but rely on one of the eight statutory reasons for saying no in the Employment Rights Act 1996. Where an employee has a disability, there will need to be a consideration of reasonable adjustments separate to a flexible working request.
The government has proposed important changes to the legislation in its highly-anticipated Employment Rights Bill. It proposes introducing a test of reasonableness and requiring employers to not only state the ground for refusing the request but also to explain why they consider it reasonable to refuse the request on that ground.
What should employers do?
- Make it clear and understandable what the business reasons are to mandate attendance in the office
- Think about what will make it attractive for staff to be in the office
- Consult and try and get staff to agree
- Give staff time to make alternative arrangements for child care etc
- Build in flexibility such as core hours
- Think about the cost of hiring people or losing talent because a mandate to be in the office
- Accept the risk of tribunal claims
Philip McCabe, 8th February 2025