Can employers insist that you return to the office?

Post pandemic many employers are increasingly pushing for employees to return to the office.

So what is the legal position if you are asked back to the office by your employer and you don’t want to or cannot? The position is generally contractually driven and fact specific.

Here is some guidance to help you understand your rights about returning to work after a period of working from home.

Check your contract

Firstly, it’s important to understand the position outlined in your contract. Requirements for your employment contract include:

  • key terms relating to your place of work;
  • For example if you are working from home or hybrid working then the contract needs to stipulate the following:
  • number of days at home; and
  • the days in the office (with the office address being provided).

During COVID employees may have been given a letter with amendments to their contracts to permit them to work from home. Alternatively, working from home may have been informally communicated.

If your employer wants to make changes to the place of work then this is likely to be a change to your contract. Therefore, your employer will need to gain your consent.

If an employer forces changes without consent this may give rise to:

  • breaches of the implied duty of mutual trust and confidence, and;
  • a right to bring a claim.

If you have a mobility clause in your contract your employer might try to rely on this when encouraging employees back to the office. In our experience, the interpretation of these clauses are fairly narrow.

Home Working or Return to the Office?

In practice, where you have embarked on home working it might be difficult for your employer to force the employee to revert to working permanently in the office. Additionally, even if the contract states that the employer is able to do so. Your employer might find it difficult to terminate an arrangement that has been working successfully without good reason. This could be a breach of an implied duty allowing employees to resign for constructive dismissal. There could also be discrimination issues too.

For example, a female employee who is a mother who is asked to stop homeworking may be able to bring a discrimination claim. Her employer would need to show objective reasons as to why it is seeking this change.

Usually employers will set out good objective reasons why the return to work in the office is necessary.

When considering a request to return to the office it is important that you check your contract and any amendments.

The issue in many situations is that details were not documented at the time the hybrid/home working policy was entered into. For example, which days, what happens for meetings and were arrangements time limited?

Whilst there is no automatic right to work from home, employees do have a number of protections. Some of these protections include:

A. Flexible Working Request

Employees have the legal right to request “flexible working” but your boss does not have to agree.

To apply, employees need at least 26 weeks’ continuous service. Employees can ask only once in any 12-month period. In Summer 2024 this is due to be increased to two requests in any 12-month period. Furthermore, your employer must handle this request in a reasonable manner and discuss your requirements in a meeting.

An employer can use one of the eight specific grounds to reject a flexible working request. The employee also has a right of appeal.

Where arrangements were put in place for home working during and after COVID, it may be harder for the employer to refuse flexible working requests (although note the reasons for refusal are based on the subjective view of the employer and not an objective view).

If you already have a flexible working agreement in place, your employer cannot make changes to this arrangement without obtaining your consent first.

More information on requesting flexible working is available here.

B. Request Reasonable Adjustments

Employees could be forced back to the office, if they have with specific needs that cannot be met. For example, this might be a long-term health condition that qualifies as a disability under the Equality Act 2010 meaning that employees can ask for different working conditions to their peers because there may be ways of working or a place of working that suits your needs better.

Furthermore, employees should emphasise and address specific factors that may impact their ability to agree to the changes. For example; childcare responsibilities, being a single parent with sole responsibility for childcare, or caring for an adult.

In order to request home working as a reasonable adjustment, employees must provide evidence that the adjustment they are seeking can effectively address the disadvantage caused by the employer’s proposed working arrangement. It is the employee’s responsibility to demonstrate that having a different place of work will facilitate your full participation in the workplace.

Above all, communication with your employer is key.

Making an Informed Decision: Resisting a Request to Return to the Office

Before refusing to going back to the office (or resigning), it’s important for an employee to weigh up their options and discuss their concerns with their employer. Employees should not be afraid to say what they need – for example, an employer has a legal duty to discuss health and safety matters with employees. Employees could consider filing a grievance here.

Conclusion

If you need help, we are here to give advice.

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