Before the Covid pandemic only 12.5% of working adults worked from home, according to ONS figures. At its peak in April – June 2020, 49% worked from home. Home working has fallen back slightly to 40% in January to February 2023.
We have seen increasingly that our clients require their employees to work more in the office, as they have concerns about the impact of remote working on company culture, camaraderie, loyalty, learning opportunities for junior staff, supervision, productivity, innovation and collaboration.
Lloyds Bank has been championed as a leading example in flexible working, but in April 2023, the Bank announced that it wanted its staff to work at least 2 days in the office per week, explaining that: “…This is about performance, supporting each other and creating equity…”.
BYN Mellon now requires at least 3 days in the office or ‘corrective action’ will be taken.
Equally we are advising employee clients who want to object to any change to their hybrid working pattern, it being ‘hybrid or the highway’ and a swift exit. It certainly remains the case that a flexible employer will be able to attract the best talent, and crucially, retain it.
We look at the potential contractual and equalities issues that employers will need to consider when seeking to make such a 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 contract of employment and handbook. Also check any relevant correspondence that might have changed the contractual arrangement between the parties. For example, was a change agreed by email during the pandemic or after a flexible working request? Was the change specified as being a permanent contractual change or just a short-term arrangement?
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 or you could still be in breach of contract. This could give the employee the right to resign and claim constructive unfair dismissal. This 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
The contractual terms are not the only consideration, as some employees will have protection under the Equality Act 2010. Employers need to listen carefully to any concerns the employee may have about the proposed changes.
For example, working from home and avoiding a commute may help an employee cope with a chronic pain condition. Hot-desking in a busy, open-plan office could be problematic for some autistic employees. If their condition is a disability under the Equality Act 2010, employers need to consider if it would be a reasonable adjustment to keep the current home-working arrangements or to adapt the proposed arrangements to help accommodate the impact of the specific disability.
Statistically speaking, female employees are more likely to have primary care responsibility for their children, so a requirement to be in the office at school pick up times, could be indirectly discriminatory on grounds of sex. It would then be for the employer to objectively justify the requirement. Post pandemic, the bar appears to have been raised, making it harder to justify such a requirement.
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 message is that a blanket policy may not be acceptable for everyone, particularly if the rationale underpinning the policy has not been clearly thought through.
No contractual right to move employees
If the 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 get them to come back to work in the office.
We can help you set up a process of meetings and prepare the communications explaining what you are trying to achieve and why. This will form a solid basis for the proposed change if the employee maintains their position and does not agree to a change of work base and you have to force through the change. 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 P&O staff, the Government recently consulted on a draft code of practice on dismissal and re-engagement, which sets out additional procedural steps. Consultation ended in mid April 2023 and we await the response. If this becomes law, compensation for any related Employment Tribunal claims can be increased by up to 25 per cent for failure to comply.
How we can help
If the time has come to get employees back to a buzzing office, we can help you get there. For further information, please contact Eleanor Rogers in Furley Page’s Employment team on 01227 763939.
Please note: This article is for general information only and does not constitute legal or professional advice.
