As companies such as Amazon and JP Morgan Chase start requiring employees to work in the office five days a week, it raises the question of whether employers can lawfully do so and the potential issues they may encounter. Steve Pires, a trainee solicitor in our employment department, examines the legal and practical issues.

The Covid-19 pandemic led to a fundamental shift in the way businesses operated and resulted in mass adoption of remote working practices. As the pandemic eased, employers began requiring employees to return to the office, with many employees now required to be in the office at least some days of the week. However, some employers are now looking to bring employees back to the office full-time, citing concerns such as low productivity and engagement from its workforce. This raises the key question: can your employer insist you return to the office?

Starting point: the employment contract

Employers must provide employees and workers with a written statement setting out the terms and conditions of their employment, which includes their normal place of work. In most cases, this will be contained in a contract of employment. If an employer states that the normal place of work is the office, they can ask their employees to return to the office full time.

Often, employers won’t set out remote working conditions in the employment contract. Instead employers will typically have a separate policy on agile and remote working providing employees with a non-contractual right to remote working, which the employer can normally change unilaterally.

Can employees refuse to return to the office?

An employee who does not have a contractual right to work remotely, and unreasonably refuses a request from their employer to return to the office full time, could face disciplinary measures for misconduct. Depending on the seriousness of the misconduct and the unreasonableness of the refusal, an employer could dismiss an employee in such circumstances.

However, employers will need to consider any refusals to return to the office on an individual basis. There is a risk that insisting employees return to the office full time could be discriminatory. For example, some employees may not be able to work from the office five days per week due to an underlying health condition, which is a disability for the purposes of the Equality Act 2010. Depending on the circumstances, subjecting an employee who cannot comply with a return to work policy to disciplinary action, or dismissing them, might be unlawful.

Employers also have a duty to make reasonable adjustments where a policy substantially disadvantages employees with a disability.

Employers that discriminate against their employees can face serious financial and reputational consequences should an employee bring a claim in the employment tribunal. Hearings in the tribunal are normally held in public and there is no cap on the level of compensation a tribunal can award a successful claimant.

The flexible working framework

Since April 2024, employees have had a day-one right to request flexible working. An employee could, therefore, make a written request under the statutory procedure to work from home a certain number of days per week. The employer should consider the request and can only reject it if it falls under one of eight business reasons set out in the Employment Rights Act 1996, such as if the flexible working request would have a detrimental impact on quality or place additional costs on the employer.

There are, we think, defects with the existing flexible working legislation: an employer does not need to provide a sufficient or reasonable explanation as to why the flexible working request has been denied. Although an employer must consult with the employee and deal with the request in a reasonable manner, it does not have to justify its decision.

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. Although these changes are welcome, in reality they would have little practical impact as the grounds an employer can rely on to refuse a request are broad. So, in practice, an employer would have little difficulty justifying a refusal.

Should employers think twice about their return to the office policy?

The reasons cited by employers for a return to the pre-pandemic norm of working in the office five days a week is that it helps improve team bonding and collaboration. Some employees also say they feel more productive and engaged in the office than at home. That said, employers should consider the drawbacks of cutting out remote working completely:

  • Many employees, primarily those from Generation Z, have been accustomed to remote working and the flexibility it affords, for their entire careers to date. In light of the mental health crisis among young people, a transition to full-time office attendance could have a negative impact on their wellbeing.
  • The UK is facing an economic inactivity problem, with a sizeable proportion of working age adults in the UK deemed not to be actively looking for work. Further, more women tend to be classed as economically inactive compared to men, likely due to the greater child caring responsibilities they still have. Any reduction in remote working will inevitably lead to more women remaining out of the economic market.
  • Over the next decade, advancements in artificial intelligence could result in fewer office workers being required in the economy. Employers should, therefore, consider the impact of asking their workforce to return to the office as this will lead to additional costs on office space and overheads that may end up being wasted if many of these workers’ jobs become remote or even redundant.

 


 

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