The “Great Return” – legal issues and pitfalls of getting employees back into the office

According to the Office of National Statistics, only 12% of working adults worked from home before the pandemic but this rose to almost 50% during the first half of 2020. During the pandemic, working from home became the norm for many people and at times it seemed unlikely that workers who were previously office-based would ever return to their city offices. As the UK moved out of lockdown and employees were permitted to return to their offices, employers took divergent approaches to structuring their post-pandemic working practices. Some companies embraced fully-remote models and gave up commercial premises, whilst others were keen to seize the opportunity to get employees back into the office and collaborate face to face. Whilst we saw different approaches in different sectors, many companies assumed a hybrid approach requiring employees to be in the office for two or three days a week and permitting home-working for the rest of the time. At the time, this felt like a permanent shift, but this year in particular we have seen a concerted effort by many employers to shift the balance further back towards office attendance, with many relying on the need to maintain their culture and foster collaboration.

A push towards greater office attendance raises various legal and policy issues for employers:

• Was the working from home or hybrid working pattern contractually agreed with employees? Have such patterns become an implied term of their employment?
• Is a simple communication required, or does the employer need to consider a more formal process? Do policies need to be changed? Do contracts need to be changed?
• How does this change align with other policies at work and do other policy considerations need to be taken into account when communicating the change? For example, how will additional commuting affect any net zero or sustainability targets?
• If the employer is seeking to implement a new global policy, do any local legal or cultural sensitivities need to be considered?

Together with upcoming legislative changes to the UK flexible working request regime (which will allow employees to make two requests per year and, through secondary legislation, is expected to become a day one employment right), seeking to increase office attendance is likely to trigger an upsurge in flexible working requests from employees who are seeking contractual derogations from their employer’s policy on working from home.

Accommodating flexible working requests where possible can lead to a more diverse workforce and help employers retain talent. However, if requests are declined or the employee is unhappy with the process, this can be a fruitful ground for grievances and legal claims. There may be some circumstances where a compromise position can be reached but if not, declining the request may mean that the employee can no longer work in the role, so the stakes are high. Employees who have previously worked flexibly (and who consider that they did so without any adverse impact on their own performance) may be less willing to accept an employer’s business justifications for refusing a formal request.

Taking a “one size fits all” approach to dealing with these flexible working requests is likely to increase risk of grievances and claims. Declining a flexible working request on the sole basis that it does not comply with the office attendance policy risks indirect discrimination claims if the application of this policy places people with, or associated with, a protected characteristic at a particular disadvantage. Employees may also bring claims for breach of the flexible working legislation and, potentially, constructive unfair dismissal claims.

To mitigate these risks, employers will need to carefully consider each request on its own merits and assess each individual's situation in light of the specific business requirements for their role. If declining a request, it will be important to engage in dialogue with the employee at an early stage of the process and consider whether it is possible to counter with an alternative flexible arrangement that better suits the needs of the business.

Whilst reviewing the individual's circumstances is crucial, the employer will also need to take a step back and consider how it has dealt with other similar requests. If it has accepted identical requests from other employees, taking a different approach for others may lead to complaints of unfairness and favouritism and, depending on whether certain employees involved have particular protected characteristics, discrimination claims. Employers may want to task their HR departments with keeping a record of requests, responses and reasons given to assist in future decision making.

It remains to be seen whether this trend will become the “Great Return” to the office as some are predicting, but it is certain to create some legal and cultural challenges that employers will need to navigate carefully.