Can your employer force you back to the office?
Over the past couple of weeks, several major companies have made the decision to call staff back to the office full time, sparking a heated debate.
But what are the rights around flexible working?
On Monday, a petition demanding that ad giant WPP revoke its new office policy attracted over 10,000 signatures in just four days after CityAM revealed it would be forcing staff to come in four days a week.
While last week it was announced that around 4,000 members of the Public and Commercial Services Union (PCS) were set to take industrial action after staff were ordered back to the office for three days a week.
During covid, and in the years following, a lot of people set their lives up around a flexible working system. It looks as if those plans are now being upended, but employees do have some scope to push back.
Below, CityAM takes a look at the rules around flexible working and employee rights around the subject.
Can employers force employees back to the office?
This all comes down to an employee’s contract.
As Tania Goodman, partner at law firm Collyer Bristow, explained: “An employment contract must set out the core working hours and sometimes specifies agile or hybrid working arrangements.”
Garvey Hanchard, partner at Bloomsbury Square Employment Law, stated that if the contract “specifies that the normal place of work is the office, then in most circumstances the employer can insist upon an employee returning to that office”.
From the employer’s side, Stephen Ratcliffe, partner at Baker McKenzie, highlighted that they have to consider the reasons for any employee refusals reasonably.
He stated: “With an eye to potential discrimination arguments, particularly where issues such as health reasons, childcare or care of a dependent elderly relative are raised.”
“However, that doesn’t prevent employers [from] instructing the whole workforce to return,” he added.
Can employees challenge this change?
Last April, the right to request flexible working became a ‘day one’ right, replacing the previous requirement for employees to have at least 26 weeks’ service under their belt before asking.
The law was not the right to have flexible working, but the right to request it.
However, as Hanchard detailed as a result of covid, many employers introduced working from home policies, rather than changing the place of work in employment contracts.
“Typically, home working policies are ‘non-contractual’ meaning that they are outside the employment contract and not legally binding, and can usually be changed by the employer in accordance with the needs of the business,” he explained.
He added: “If a business allows employees to challenge proposed changes to company policies it would normally be because the employer wants to maintain a positive relationship with employees rather than because the employees had a right to challenge a change.”
Can employees be penalised for not returning to the office?
Goodman stated that an employee would be penalised if they didn’t comply with the policies.
“If they do not have a contractual right to insist on remote working then their refusal could constitute misconduct with consequential disciplinary sanctions, including dismissal,” she added.
Ratcliffe added: “Subject to the qualification that a small category of employees may have unique circumstances which would expose employers to claims if they did so.”
As Libby Payne, partner at Withers, added, in addition to the law, an employee working from home when a business is office-based “may find that they are missing out on opportunities for development and progression, even where employers try to counteract this proximity bias.”
Are there any proposals in the Employment Bill focused on flexible working?
The Employment Rights Bill has kept every employment lawyer busy since it was revealed by the new Government last October.
From protection against unfair dismissal to ‘day one’ rights, the Bill is predicted to cost British businesses around £5bn to implement in full.
The bill does touch on flexible working, but there are some rules around what’s permitted.
Payne explained that the proposed changes include “any refusal to grant a request must not just be for one of the eight statutory reasons, but it must also be ‘reasonable’ to refuse the request.”
“Employers would also be required to explain why the decision is reasonable,” she added.
Ratcliffe added the Bill proposes: “A new code of practice on the ‘right to disconnect’, inspired by similar models in Belgium and Ireland, which is said to be intended to prevent remote working turning homes into 24/7 offices.”
As CityAM previously covered, the Employment Tribunal will see the knock-on from this overhaul.
And despite the headline-catching changes contained within the bill, a backlog at the Employment Tribunal will make it harder for employees to hold employers to account.