Recently, Amazon joined a myriad of other companies ordering staff back to work full time. Other companies have moved or are moving to a more defined hybrid policy for its desk based workers.
Some companies have faced an immediate backlash, with rumours of complaints being lodged at Amazon and resignations at Starling Bank.
Like companies, employees are not all of the same mind when it comes to working from home. A large cohort of employees laud the benefits of hybrid or even fully remote working. However, there are significant numbers of employees who feel passionately about a return to office based working, including for reasons of culture and development, not to mention those who simply have no space to work from home. Employers are having to balance these competing preferences.
In this article, we explore what legal rights employees and businesses have in this context as well as considering more commercial factors.
Can employers require employees to work from the office?
For the most part, there is nothing in law preventing employers from requiring employees to return to work from the office, where this is their contractual place of work.
Most businesses did not formally amend contracts to reflect increased flexible working during the pandemic, for desk based employees, meaning their contractual place of work remains the office. This enables employers to position flexible working arrangements as a non-contractual policy, rather than a right, which can be amended or withdrawn.
Implied into every employment contract is a requirement that employees follow reasonable management instructions. Generally speaking, a request to attend for work at your contractual workplace location is a reasonable instruction.
Exceptions to the general position
- Discrimination
Employers need to consider the risk of potential discrimination arguments arising from a mandate to return to the office. This could include those with childcare responsibilities or disabilities who find it easier to manage their symptoms from home.
- Flexible Working
Employees have a day 1 right to request flexible working. Employees who simply do not want to or who feel unable to return to the office can submit a request to continue remote working, either on a full term or hybrid basis. Evidence they have successfully fulfilled their roles at home could make it more difficult for employers to reasonably turn down these requests, with employers having to point to one of a limited number of statutory reasons. The often cited need for collaboration is not one of these permitted reasons.
- Constructive Unfair Dismissal
More generally, where an employee has strong individual grounds for wanting to continue with existing hybrid or remote working arrangements, an employer runs the risk of a constructive unfair dismissal claim if it persists with a company wide mandate and faces resignations in response.
For example:
- Employees who have relocated relying on previous communications from the business about a commitment to remote working.
- Employees who were recruited during or since the pandemic who do not live near an office location.
- Employers who have moved and/or downsized their office since the pandemic. The office stated in employee contracts is no longer accurate and/or the new office cannot accommodate all employees.
Commercial considerations
Irrespective of any legal right businesses may have, there are a number of other factors for employers to consider:
- Recruitment and retention – Whether or not an office based policy will assist or detract from attracting and retaining talent will depend on the location, sector, employee demographic and specific business.
- Reputation – For many selling remote connectivity services, you are forced to question whether a move from remote working undermines their own business. If Zoom do not feel able to continue to endorse remote working with their own workforce, will that impact their reputation?
- Cost – Where employers are maintaining a sizeable office at a substantial cost, there is pressure to improve occupancy rates to justify this overhead.
- Productivity – Some argue that higher levels of office attendance improve employee engagement, client survey scores and financial performance. Others are adamant that the time and costs saved in commuting, the development of remote meeting and communication platforms and the added flexibility working from home provides are drivers of the same things.
- Development – A number of senior leaders, including the UK leader of Nationwide, which abandoned its “work from anywhere” policy for 13,000 non-branch staff in December 2023, consider that a physical office presence is important for career growth, both in terms of seeing leaders in action and facilitating the fostering of relationships with senior colleagues.
- Monitoring – Some businesses have implemented monitoring devices or time recording systems or started tracking access passes to monitor office attendance and hours of work. This runs the risk of damaging labour relations and morale, with mutual trust being a fundamental aspect of any employment relationship and may not even be effective – many will remember the recent headlines about employees purchasing “mouse jigglers”!
- Implementation –
- Managers should be on board with the company policy to avoid situations where they continue to allow direct reports to work remotely, contravening the stated policy.
- Plan for any mass office return, given the multiple news reports of employees having to work from corridors or kitchens due to insufficient numbers of desks.
- Schedule and plan office days, to avoid employees being forced into the office to spend much of their working day with headphones on, in remote meetings with colleagues and clients elsewhere.
- Enforcement – What happens if staff refuse to comply? Companies have been adopting a range of incentives and sanctions including, reportedly:
- Manchester United announced that employees not wanting to return to office working would be given a payout to resign.
- Dell threatened a loss of promotions and pay rises to those asked to return full time if they stayed at home.
- Just Eat for Business offered a free food allowance as an incentive for hybrid working.
- Nationwide secured trade union support for its hybrid policy before rolling it out.
- Industrial relations – Businesses seeking to enforce office working without staff buy in or having not thought through its implementation run the risk of industrial relations issues. This could prove particularly challenging for businesses with high levels of trade union membership, even if no union is formally recognised. Trade unions could use discontent to drive membership, push for formal recognition and ballot for industrial action.
- Nearly 4,000 HM Land Registry employees are taking indefinite action from 21 January following an order to return to the office 3 days a week. The action includes working to rule and refusing to cover for employees.
- Employees at the Office for National Statistics have reportedly voted in favour of industrial action in protest against a return to the office 2 days a week, but the specifics are yet to be announced.
Final thought
While companies generally have a right to mandate a full or partial return to office working, any instruction should be carefully planned and communicated to help ensure a smooth transition.
Adopting a blanket policy is best avoided and employers will need to take into account individual circumstances to determine whether an instruction to return to the office is reasonable, where concerns are raised.
It is undoubtedly the case that employee expectations have changed and companies that push too far and too fast run the risk of losing key talent and facing increased trade union activity. Businesses in some sectors seem to be adopting similar approaches to each other which is likely to be a deliberate strategy mitigating against this risk and ensuring they remain competitive.
Threats and gimmicks are unlikely to be an effective substitute to proper engagement with staff to understand and balance their needs with those of the business.
For any employees considering this, our team would be happy to work with you to identify and implement a tailored strategy so please do feel free to reach out to us.