15 May 2023

According to the Office for National Statistics, before the Covid-19 pandemic, only one in eight working adults reported working from home at least once during the previous seven days. This figure peaked at 49 per cent between April and June 2020. It has decreased since then, but not drastically: the figure for January to February 2023 is 40 per cent.

Many employers now want staff to start working in the office either all the time or more frequently. Reasons for this include concerns about the impact of remote working on company culture, camaraderie and loyalty; creating sufficient supervision and learning opportunities for junior staff; and maintaining productivity, innovation and collaboration.

In this article, we outline the contractual and equalities issues that employers need to think about when seeking to make this change.

Can we insist on a return to the office?

It is important to understand the contractual position, and the first port of call will be the employees’ contracts of employment. Remember, also, to check any subsequent correspondence that might have amended contractual terms.

For example, was a change to the employee’s place of work agreed by email during the Covid-19 pandemic or after a flexible working request? If so, was an updated contract of employment issued?

Even if the employee’s place of work is described as home, hybrid or remote, their contract may give you flexibility to change it. We can review the documents to clarify the contractual position.

Contractual right to change place of work

If the employee’s contract gives you the right to change their place of work, this needs to be done in a reasonable way; otherwise, you could still be in breach of contract. This could give the employee the right to resign and claim constructive unfair dismissal. Reasonableness means giving the employee fair notice of the change. We suggest meeting with the employee to discuss the proposal with them and to consider any particular difficulties which the employee raises.

Discrimination and change of workplace

Contractual terms are not the only consideration, since some employees will also have protection under the Equality Act 2010. Employers therefore need to listen carefully to any concerns the employee has about the proposed changes.

For example, working from home and avoiding a commute may help an employee cope with a physical health condition, such as irritable bowel syndrome. Hot-desking in a busy, open-plan office may be unworkable for some autistic employees. If the employees suffering from these conditions qualified as disabled under the Equality Act 2010, their employers would need to consider whether it would be a reasonable adjustment to keep their current home-working arrangements or to adapt the proposed arrangements to help accommodate the impact of each disability.

Female employees with primary caring responsibilities for children may need to be near nurseries or schools at drop-off and pick-up times. Where this is incompatible with a requirement to be present in the office during working hours, there may be a case for indirect discrimination. Employers can in some circumstances justify insisting on particular working arrangements.

Once you have established the nature of an employee’s concerns, we can advise you on the discrimination risks and how best to manage them. The key consideration is that a rigid policy may not be adequate, particularly if the rationale underpinning the policy has not been clearly thought through.

No contractual right to move employees

If an employee’s contract states that their place of work is home, hybrid or remote and has no flexibility, you will need the employee’s agreement to initiate a return to working in the office.

We can help you prepare a series of meetings and written communications with an employee explaining what you are trying to achieve and why. This will form a solid evidential basis for carrying out the proposed change of workplace if the employee does not agree to it and you have to force it through. This is called ‘dismissal and re-engagement’ or, more pithily, ‘fire and rehire’.

This involves dismissing the employee from their existing contract and offering them a new contract with the new work base. Both the process leading to dismissal and the decision to dismiss need to be reasonable, or you could have an unfair dismissal claim on your hands. In addition, employers need to be alert to the discrimination risks mentioned above.

New code of practice 

Following public criticism of recent high-profile, large-scale dismissals of staff, the Government consulted on a draft code of practice on dismissal and re-engagement, which sets out additional procedural steps for an employer to follow. If this becomes law, compensation for any related tribunal claims may be increased by up to 25 per cent for failure to comply.

How we can help

If the time has come to get your employees back to the office, we can help you get them there. For further information, please contact the team at Synchrony Law.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.