Your business may be one of a number of employers looking to require its staff to return to the office in what is being billed as, ‘The Great Return’. Many employers requested their staff worked wholly or partly from home during the Covid-19 pandemic and some have since moved to more permanent remote or hybrid models.
However, a growing number of businesses are requiring a full or partial return to in-office working, but how can this be done in a lawful and practical way without alienating your workforce?
In this article we'll explore how to request staff return to the office and share learnings from recent tribunal cases. If you have any questions about requesting that staff return to the workplace, flexible working requests or changes to your business’ policies or terms and conditions of employment, our employment solicitors can help.
Contents:
- How to request staff return to the office
- Was the agreement to work remotely a temporary or permanent arrangement?
- What should I do if staff are reluctant to return to the office?
- How to manage the practicalities of a staff return to the office
- Recent tribunal cases about returning to the office
- If you are changing work location, can you change other terms and conditions of employment?
- Conclusion
How to request staff return to the office
The KPMG CEO Outlook 2023 survey found that 63% of businesses in the UK predicted a full return to in-office working by 2026, but how do you request that employees return?
The reaction from your workforce is likely to be impacted by the way the request to return to the office is communicated so it’s important that you take time to consider:
- the tone and wording used in any announcements and the reasons you are citing for the change. Often employers rely on the need to ‘maintain their culture’ and ‘foster collaboration’ but being as specific as possible about the benefits to your business and your employees of a return to the office can assist them to better understand why you are making the change and it can help with their willingness to return.
- the length of notice that will be given to staff before effecting the change. If you are changing terms and conditions, you should check contracts of employment or section 4 statements to ascertain whether any minimum notice period applies. If so, this should be complied with before the change in working location is implemented to avoid a breach of contract arising. If the contract is silent on this point, employees should still be given reasonable notice of the change. When a request to make a change to terms and conditions is made, this should be in writing and preferably signed on behalf of your business. The employee or worker should then be asked to provide signed written confirmation of their agreement to the variation.
- whether there will be an individual point of contact nominated to field any questions or hold any discussions related to the request that staff return to the office. It is wise to communicate the requests in writing and to take minutes of any discussions, so that there are clear and accurate records of what has been communicated by you and your staff members.
- ensuring communication and decision making is consistent to avoid potential workplace disputes and claims, eg if employees or workers believe that they have a contractual right to work from home which has been unfairly removed.
A good starting point before crafting a communication requesting a return to the office is to look at the contractual position in your contracts of employment. It would also be helpful to check any relevant policies, such as a homeworking policy which may be included within a staff handbook.
Your employee’s contract of employment may have a specific flexibility clause or mobility clause, which means that, as the employer, you have reasonable discretion over the location of an employee’s work. If you are concerned as to whether you have the right to exercise such a clause, you should seek employment law advice before making any changes to minimise risk to your business.
It is crucial to look at the reality of whether working from home or hybrid working was contractually agreed with employees. Regardless of what is contained in the contract, is the reality that working patterns and locations have in fact become an implied term of their employment? If an employee has a contractual right to work from home and their residential address is stated to be the place of work, it can be more difficult to require a move to working at the office without the employee’s agreement as this would entail a change to the employee’s terms and conditions of employment. For more information on this topic and the ways in which changes can be made, see our article: Changing terms and conditions of employment. Please note, it is advisable to seek professional legal advice on changing terms of employment before taking any action.
Was the agreement to work remotely a temporary or permanent arrangement?
How you go about changing the location of work for an employee will also be dependent on whether contracts were varied temporarily to allow employees to work from home for a particular reason or for a specific length of time; or whether the contract was re-drafted when the change was made with the intention that the arrangement to work remotely would be permanent.
If there was a temporary arrangement for a specific period of time, or because of a certain event which has now passed, it will most likely be easier for you to now make a reasonable request on notice for an employee to return to the office.
If an arrangement for remote working was changed on a permanent basis, and the employee’s contract was expressly or impliedly changed, this means there will need to be a change in terms and conditions. If an employee does not agree to the change, other options will need to be considered as set out in the article mentioned above.
What should I do if staff are reluctant to return to the office?
The CEO of KPMG said: ‘Issuing an ‘all hands on deck’ edict is a simple response to a complex issue – it won’t work for all businesses. Some sort of hybrid working is likely to remain a useful way to attract and retain the good people…CEOs hoping to return to an all-office world will have to work collaboratively and carefully with colleagues to get it right.’ This must be the correct position - if employees will not agree to return or their morale and productivity are likely to be affected by a return to the office, you may want to see if there are cost effective incentives or other benefits which could be offered to employees being requested to return. According to the KPMG UK Outlook Survey 2023, 83% of UK executives believed that financial rewards and promotion opportunities could be linked in future to office attendance. However, this approach must be adopted consistently and in a non-discriminatory way and so seeking advice on this strategy before it is implemented is important.
If retaining or recruiting top talent is at risk due to your requirement for a return to the office, you may want to consider your position carefully and analyse whether it is worth pursuing and if the business benefits outweigh the risks. You might be able to reach a compromise such as hybrid working and attendance for set days or hours or for certain training, supervision or team meetings while still having the option to sometimes work remotely.
If you have reservations about a suggestion made by an employee, you could offer a trial period with an agreed right to revert to office working if certain targets aren’t met. If you have objective data to support your reasoning that a return to the office is positive for your business, this will be more difficult for an employee to refute and is more likely to be fair if further action such as disciplinary action is taken against an employee for non-compliance at a later date. Whilst this should be avoided where possible, it may be required if employees refuse to return to the office and do not have a legitimate reason to do so.
Before deciding on the position that more staff should return to the office, and particularly where staff are reluctant to do so, you should consider how this approach aligns with other policies your business has. For instance, if your business has a reputation for being flexible and family friendly, will the rigidity of a full working day in the office five days per week potentially damage that? Or, if you have sustainability targets, will they be negatively impacted by increased commuting by your staff?
It is important to be aware that there may be other reasons for employees working remotely or reasons why bringing staff to work in the office would be significantly more difficult for some than others. If an employee has a health condition that could be deemed to be a disability, for example, you must be careful not to discriminate against them by introducing a policy which would put them at a disadvantage when compared to employees without a disability. It may be that alternative reasonable adjustments would need to be discussed and it is particularly important to consult and seek agreement from those employees affected before making any final decisions on changes to working patterns or location. This will help to minimise the risk of discrimination claims being made against your business.
How to manage the practicalities of a staff return to the office
If you are inviting staff to return to the office, you will need to consider practical issues such as whether you have sufficient office space, facilities and resources to accommodate the return of all staff at once. In addition, if your staff have not been working from the office for a long period of time, you will want to ensure that all of their contracts and your business’ employment policies are up-to-date. This will include ensuring that the documentation reflects the correct contact details of individuals in your workplace and any changes to employment law during the time staff were absent from the office. If you would like help reviewing your contracts and employment policies, our expert employment solicitors can assist you.
If you have staff members who could be deemed to be disabled and require reasonable adjustments, or, for instance, have childcare or other caring responsibilities, discussing the request in detail and making best efforts with your resources to make adjustments to support those staff should be discussed and implemented where practicable. If there are specific arrangements which need to be made to enable this, these will need to be made prior to the employee’s return. Failure to make reasonable adjustments could lead to potential claims including on the grounds of constructive dismissal and/or discrimination.
Similarly, if new benefits or promotions are offered, this will need to be organised and in place by the return date of the employee and it is advisable that the relevant contract of employment is also updated by that time to reflect the new terms being worked under.
As there are imminent changes with the Employment Relations (Flexible Working) Act 2023 coming into force, this is likely to result in an increase in flexible working requests as these become more accessible to employees. Flexible working requests may also be used as an alternative way to object to your return to office request.
If flexible working requests are declined or your staff members are unhappy with the process and you are unable to reach an agreement, this can leave your business with grievances and legal claims to resolve. With that in mind, it is imperative that your business keeps a clear written record of requests, responses and reasons given for accepting, suggesting alternatives or refusing flexible working requests, so that future decision making is consistent. Having a robust and comprehensive, up-to-date flexible working policy can help.
Our article, An employer's guide to flexible working, will help further explain the topic and how to deal with requests.
Recent tribunal cases about returning to the office
It is worth noting that there has been some recent decisions in the Employment Tribunal (‘Tribunal’) in respect of employer requests for staff to return to the office, which may impact future cases.
Quelch v Courtiers Support Services Ltd – Whilst this case was related to a request for an employee to return during the Covid-19 pandemic, this is worth noting if employees request to work remotely for other reasons that may affect their health or the health of those they live with. In this case, the Claimant was working from home during the pandemic as agreed with his employer because of the medical vulnerability of his partner. Following the employer’s request in July 2020, the Claimant refused to return to the office and he was instantly denied access to work systems and was placed on unpaid leave and dismissed for gross misconduct the same month. The Tribunal found that the Claimant was automatically unfairly dismissed for gross misconduct as he took the steps he did to protect himself and his girlfriend from imminent danger. At that time, Covid-19 had been classified as a serious and imminent threat to public health, including his health and particularly the health of his girlfriend. Even if this had not qualified as an automatic unfair dismissal for gross misconduct, the requirements for an ordinary unfair dismissal were met as the sanction and procedures fell outside the range of reasonable responses open to a reasonable employer.
Similarly, in the case of Gibson v Lothian Leisure, an employee refused to return to work as a chef in a restaurant due to the vulnerability of his father during the Covid-pandemic. He was able to rely on the above in his successful claim for unfair dismissal after he was told to, ‘shut up and get on with it’ and after refusing to return to work his contract of employment was terminated with immediate effect via text message.
In the recent case of Follows v Nationwide Building Society, the Tribunal ruled that making an employee redundant after requiring her to work from the office amounted to indirect disability discrimination by association as she was the primary carer for her disabled mother. Enforcing office working for this employee put her at a particular disadvantage compared to those without caring responsibilities. The employee was awarded nearly £350,000 in compensation, after being dismissed for not changing from home to office-based working.
Finally, in Wilson v Financial Conduct Authority (‘FCA’), a senior manager brought a claim against the FCA after her request to have the right to work entirely from home was refused. Whilst it was found that the statutory time limit had been breached, the Tribunal dismissed Miss Wilson’s claim that the FCA’s decision to reject her request was based on ‘incorrect facts’. This outcome will be welcomed by many employers who are seeking to increase office attendance. It will provide businesses with reassurance that there is scope to reject applications to work remotely, provided that such requests are handled appropriately.
However, this judgment will not in itself be determinative on this issue. Businesses will still need to consider each individual request on its own merits. It was in fact commented by one of the judges in the closing comments of the judgment here that, ‘This is a case that raises a key issue in the modern workplace and will no doubt be the subject of continued litigation.’ So, we should watch this space for more case law and other developments in this area.
If you are changing work location, can you change other terms and conditions of employment?
If you are looking to reduce salaries or benefits or make any changes to an employee or worker’s contract which they do not agree to and which may have a detrimental effect for them, it is prudent to seek legal advice first. Here is our article on changing terms and conditions of employment, for further information.
Notably, there have been recent reports of some businesses looking to determine promotions and bonuses based upon office attendance. Whilst employers may seek to encourage a return to the office in this way, this would not be without risks. It would be necessary to consider at the outset whether this approach could be in breach of any relevant contractual provisions. For instance, it may be that homeworking has already been granted as a contractual right and/or the relevant bonus scheme is an existing contractual entitlement. This would require a review of any express contractual terms. But consideration should also be given as to whether the employer's actions could breach any implied term including the implied duty of trust and confidence. Separately, thought should be given to whether such a practice would be discriminatory. In particular, there is likely to be an argument that such an approach would constitute indirect sex discrimination where, say, women can demonstrate that they bear greater childcare responsibilities.
It is also important not to treat home workers less favourably because they are home working, specifically if they have a protected characteristic or if they are a part-time worker, as the risk of employment claims increase for your business in those instances. New benefits in employment contracts such as an on-site staff gym or canteen should be open to use by homeworkers in the same way as those attending work, even if they are not likely to use it. If the workplace becomes more appealing and offers more on-site benefits and facilities, it is more likely to encourage retention and recruitment of the best talent, improve morale and tempt employees back to the workplace. Consultation with employees on, and investment in, the office space itself might be a valuable outlay if you are serious about bringing your workforce back to the office in greater numbers.
If your staff have received payments or benefits relating to travel or their working location and this does not apply if they work from home, you are likely to be justified in removing that benefit or payment if they do not return to the office. For example, if you provide a payment to support with travel costs or pay a London weighting, this may not be applicable if working from home. As mentioned above, always check your employment contracts and policies for any notice required to make contractual changes and if in doubt, seek legal advice first.
There is no legal requirement for an employer to pay expenses relating to the costs of working from home unless this has otherwise been contractually agreed. This being the case, if you have been assisting with these costs as a gesture of goodwill, or your employees request this and you want to encourage office working, you could refuse. Again, if you have made such payments before you will need to ensure that this has not become an implied contractual term and may wish to seek legal advice on this point.
Conclusion
Whilst there may be legitimate business reasons for wanting to bring staff back to the office, it is important to ensure that clear, well-reasoned, consistent and non-discriminatory messaging and actions are taken to do this. If there are high levels of reluctance to come back to the office amongst your staff, you may need to consider further incentives or compromises to working patterns and locations. If staff members have protected characteristics, work part time or their contracts have been expressly or impliedly changed to allow remote working, this does complicate the request that staff return and seeking guidance from a specialist employment lawyer first, is advisable.
