The return to the office – can employers force staff to revert to office working?

The Covid pandemic transformed global working habits, leading to more people working from home or under hybrid working arrangements than ever before. Many employers have since continued to adopt a hybrid working structure, with employees splitting their time between home and the office.

A few years on, we are starting to see employers reconsider their approach to hybrid working with a shift back to more traditional working practices. Many are encouraging – and in some cases mandating – a return to primarily office-based work, citing the need to maintain culture and promote collaboration. This article sets out the potential legal implications of seeking to force employees back to the office.

Are employers entitled to request an employee to return to the office?

If the employment contract states the office as the normal place of work and no longer-term, permanent change was agreed, employers are entitled to ask employees to return to the office as a “reasonable management request”. Unfortunately, if homeworking was not clearly cmmunicated as a temporary measure subject to reversal it may be difficult to rely on a contractual term to mandate an employee back to the office.

In addition, where home or hybrid working arrangements have been in place for a significant period of time, these may now be regarded as implied terms within the employment contract through custom and practice. For a working arrangement to potentially constitute a binding implied term, it must be well established, consistently applied and known to the entire workforce.

Where contractual changes to allow hybrid working or working from home were agreed upon, employers cannot force employees to return to the office and would need to seek employee consent to make such changes.

How can employers get people to return to the office where contractual changes to allow home/hybrid working has been agreed upon or could potentially be regarded as implied terms through custom and practice?

If there is a need to make contractual changes, employees must be consulted. Employers need to be clear about the purpose of the proposed changes to working practices and consult with employees to reach an agreement or compromise. Work-life balance has become a key priority for many so employers should consider whether they can offer any incentives in return.

Where agreement cannot be reached through consultation, employers can sometimes justify unilaterally changing employees’ contractual terms by ending their contracts and re-hiring them on new terms and conditions, known as ‘fire and rehire’. However, this approach carries a high risk of legal claims, reputational damage and adverse effects on working relations, so it should only be considered as an absolute last resort.

From 18 July 2024, employers seeking to change employment terms and conditions under this approach will be required to follow a new statutory code of practice on dismissal and re-engagement. The amended code sets out employer responsibilities to explore alternative options and properly consult employees before raising the prospect of dismissal. Employers will also be required to contact ACAS prior to raising the possibility of dismissal and re-engagement.

Flexible working

Employers looking to mandate a return to the office may see an increase in flexible working requests. The updated regulations came into force in April 2024 and saw the removal of the 26 weeks qualifying service, a requirement to consult employees where a request is to be rejected and a reduced timeframe of two months to complete the process including any appeal.

Employers may still refuse a request, and the eight business reasons for refusal remain the same under the new legislation. However, refusing requests for home or hybrid working may give rise to grievances, constructive dismissal, or a breach of flexible working legislation.

Discrimination issues

Employers should also be mindful of potential legal claims, such as indirect discrimination against women or people with disabilities who might be disproportionately affected by removing hybrid or homeworking practices. If working from home has been agreed to be a reasonable adjustment for an employee with a disability, the employer has a legal duty to adhere to this.

Conclusion

Employees value the improved work life balance that comes with greater availability of flexible working practices, and it has become the norm for many following the pandemic. A recent report by Hays revealed that 56% of employees are willing to accept a lower-paid job in exchange for a better work-life balance. It found that 33% of workers consider work-life balance to be the most “crucial consideration” when looking for a job.

Employers thinking about a return to the office should be clear on what’s driving the organisation back to the office, highlighting the benefits the change will bring for employees, as well as the company as a whole. Clear communication from the beginning will also help to encourage employee buy-in and allow for a smoother transition. Consult with employees and try to find a balance that meets the need for people to attend the office more regularly while providing sufficient flexibility for employees. Employers that are too prescriptive in their approach will likely see a decline in productivity, recruitment and retention of top people.

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If you have any questions or for more information on flexible working policies, please get in touch with our specialist team by filling out our online enquiry form or by calling 0333 222 0989.