As employers are all aware, remote, flexible and hybrid working has boomed since the pandemic. Previously limited to employees with special circumstances, or occasional use, working from home has become the norm for many workers in the UK and worldwide. However, over the past few months, a number of large global companies, including Disney, Twitter, Starbucks and Amazon, have announced that they will require remote workers to go back to the office, whether on a full time or hybrid basis. Their stance is that, particularly in creative and/or heavily regulated businesses, the ability to connect and work with peers is enhanced when workers are physically together.
The BBC argues that current economic instability, combined with large-scale lay-offs, has resulted in employers being more confident about their ability to find replacements for workers who do not want to come back to the office. Other experts have floated the possibility that companies are using this strategy to downsize, by not replacing workers who refuse to come back to the office.
Many employees are unhappy about this trend; more than 2,300 Disney employees, for example, have signed a petition urging their CEO to ditch the planned return to offices, claiming it will create critical resource shortages and loss of institutional knowledge. Employers risk losing top talent by forcing a return to the office, as studies show that many employees value and prioritise remote work (due to less time spent commuting and better control over their work hours, lower burn-out rates, and improved productivity).
Our blog sets out whether you can (or should) require your workers to go back to the office and how to deal with flexible working requests.
Can I make my workers come back to the office?
This depends on the circumstances. Many businesses have allowed workers to continue working remotely without making formal contractual changes to their employment agreements. For example, they may have relied on a ‘flexibility clause’ in their staff member’s employment contract which permits the employer to change an employee’s location of work by giving reasonable notice. Alternatively, they may have changed their employment policies and contracts to allow working from home on an ad hoc basis as determined by the employer. In these cases, it’s likely you can require workers to come back to the office.
However, you’ll also need to consider whether you have formally changed a worker’s contract to include their right to work from home and/or if you’ve agreed to a flexible working request by your employee to work remotely. In either case, you will likely need your staff member’s consent to return to the office.
1. Have you made a formal amendment to your employee’s contract?
If you have formally amended your employee’s contract to allow them to work from home full time or on certain days, you’ll need their consent in order to require them to attend the office for additional days. Carefully explain to your employee why you believe it’s necessary for them to return to the office, and, if they disagree, try to understand their reasons and come to a mutually acceptable arrangement. If you can’t come to an arrangement, check whether their contract includes a ‘flexibility clause’; this may allow you to change the terms of their contract on reasonable notice. However, you need to act reasonably and without discrimination. You should seek legal advice if you are trying to rely on a flexibility clause in these circumstances; you can access a specialist lawyer in a few simple steps using our Ask a Lawyer service.
If you aren’t able to rely on a flexibility clause, changing an employee’s contract without their consent can lead to you being sued for damages and/or constructive dismissal. It can also cause damage to staff morale and productivity. See our Q&A for more information on the consequences of trying to force changes to employees’ contracts and the difficulties that may result.
2. Has the employee in question made a flexible working request?
Your employee may have previously made a flexible working request asking to work remotely, and if you have agreed to this you will need to stick to your agreement. (You should have amended their employment contract to reflect the new arrangements.) As above, you can discuss your proposed return to the office plans with your employee and try to get their agreement to the new regime, but you can’t force them to return.
Often employees who have made formal flexible working requests have done so because they have specific circumstances such as childcare arrangements, disabilities, or long commutes, and may not be willing or able to physically return to the workplace. You must be careful not to discriminate against staff when considering flexible working requests and/or implementing new employment policies.
3. Can I make changes to my Flexible working or Working from home policies without my employee’s consent?
This depends on the wording in your flexible working policy and employment contracts, and how you behave in practice. Where your staff member’s employment contract refers to a policy for more detail in relation to particular matters, that policy may then become part of the contract. You may still be able to make a change without consulting your employees if the policy specifically says you can, but you must exercise caution and there are limits to the extent to which you can rely on these clauses. For access to a specialist lawyer in a few simple steps, you can use our Ask a Lawyer service.
Even if I can legally require an employee to come back to the office, what are the downsides?
It’s important to tread carefully when making big decisions that affect your workforce. If you are considering requiring workers to come back to the office, it’s good practice to consult with your employees to make sure you are addressing their concerns and maintaining staff morale. As mentioned above, employees have indicated that they strongly value being able to work remotely, and you risk losing talent and experienced staff if you are too inflexible with your approach. Your employees may have relied on your remote working policy to set up their life, eg by moving further away or changing childcare arrangements, and may not be able or willing to come back to the office. The current cost of living crisis may also make employees more reluctant to spend money on transport and other costs to come into the office, so you should bear this in mind.
Studies have shown that employees are more productive and innovative if they have access to remote work options, and are less likely to leave a job. This may particularly be the case for those with childcare responsibilities.
What should I do if an employee makes a flexible working request after I have indicated I want employees back in the office?
Whilst you are under no legal obligation to agree to flexible working requests to work from home, when dealing with requests it’s important to bear in mind the following:
Statutory flexible working requests
Employees with at least 26 weeks’ continuous service with you have the right to make a formal request for flexible working (which includes working from home). If you do get such a request, whilst you are not obliged to agree to it, you do have to consider it in a reasonable manner and can only refuse it on one of eight permitted grounds, being alive to potential issues of discrimination if you do reject it.
For further guidance about your legal obligations when it comes to formal flexible working requests, see our Q&A on Flexible working requests, and for template documents to help you comply, see our Flexible working toolkit.
Informal flexible working requests
Any staff member could make an informal request for flexible working, and to avoid claims of discrimination if you apply a blanket policy when dealing with them (which might, for example, discriminate against disabled staff or working mothers), it’s a good idea to listen to staff members’ individual circumstances to try to reach an agreement with them.
If your employee has made a formal flexible working request, you must inform them of your decision within three months. You could consider agreeing to a trial period (which should be documented in writing), to see if it works to have some employees back in the office while some are still working from home.
You should note that the government has recently announced that they will make flexible working the default for millions of employees, which will include the right for employees to request flexible working on their first day of employment. You’ll be required to consult with your employee to explore alternative options before rejecting a request. See our recent blog for further guidance on these Government plans.
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Marion joined Sparqa Legal as a Senior Legal Editor in 2018. She previously worked as a corporate/commercial lawyer for five years at one of New Zealand’s leading law firms, Kensington Swan (now Dentons Kensington Swan), and as an in-house legal consultant for a UK tech company. Marion regularly writes for Sparqa’s blog, contributing across its commercial, IP and health and safety law content.