Back to the Grind: Employers Push to End Remote Working
As solicitors and HR professionals predict a surge in employment tribunal cases relating to the desire for remote working, what has caused the trend amongst employers to mandate a return to the office and depart from the now common “hybrid” model?
One reason may be big industry. The likes of Ernst & Young and Amazon have both endorsed return to work strategies, whilst the likes of JP Morgan, Boeing and UPS are all mandating five-day office attendance. Is it any surprise then that this effect is trickling down to small and medium sized employers?
How are “hybrid” arrangements implemented currently?
During the pandemic new ways of working were introduced, at scale, and often in piecemeal fashion. This resulted in a mixture of;
- Working from home policies
- Variations to existing terms and conditions of employees’ contracts of employment
- New contracts of employment
- “Hybrid” memos governing temporary arrangements
- Informal arrangements
How employers might drive change
Every employment relationship is governed, ultimately, by the contract of employment.
It is natural then, as a starting point, that employers must first establish whether a contractual entitlement exists to work on a hybrid or from-home basis.
Where such a right exists, undoing it can be tricky and is often best achieved through consent amongst staff. Starting discussions early and keeping the staff body involved are therefore paramount considerations for any employer. Bringing about organisational change should be done in a measured way with appropriate legal and/or HR advice in connection with overview, planning and implementation to minimise employee disengagement.
If there is no contractual entitlement to work remotely, then any change to policy/strategy or programme involving a return to the office may be easier to carry forward but there are additional considerations to be made including:
- Is it fair and equitable, or could it breach the implied term of maintaining trust and confidence? For example if only part of the staff body is expected to return to the office, how would you as an employer justify those selected to return?
- What will a mandated return to the office do to staff productivity, cohesiveness, and staff morale?
- Are there legitimate reasons for certain staff members to seek to work exclusively from home, i.e., caring responsibilities, disability, childcare? If yes, does the organisation have robust polices and processes to deal with such requests?
- Has the organisation budgeted for a return to “bricks and mortar” in terms of cost, resource, infrastructure etc?
Expect a surge in legal challenges
Flexible Working – On 1 April 2024, making a formal flexible working request became a “day one” right for all employees. If there are no robust systems to monitor, consider and respond to such requests, there is a risk that this may result in employment tribunal claims (which can be raised during employment) around an Employer’s failure to properly consider flexible working requests.
Reasonable Adjustments – Employers will also have to be mindful of potential Equality Act 2010 challenges to any attempt to change working arrangements, if returning to the office would pose a challenge for a disabled employee. Making a request for reasonable adjustments is a right of any disabled employee, and caution should be taken in dismissing such a request too lightly. Indeed, the employer has a positive obligation to explore reasonable adjustments, if it is aware of the disability and the disadvantage it puts the employee at, whether or not the employee makes a request.
Indirect sex discrimination – Potentially a female employee could argue that a refusal to allow home working amounts to indirect sex discrimination, on the basis that the need to spend time travelling to and from work makes childcare more difficult, and women more often have the primary responsibility for childcare.
Decoding developing caselaw
Elizabeth Wilson v Financial Conduct Authority (December 2023) – A request for flexible working, made under the Employment Rights Act 1996 to work exclusively from home was rejected by the Employer and the employment tribunal found this was a legitimate decision to reach. This case has been widely publicised as the first of its kind.
Contrast this with……
James Donnelly v South Lanarkshire (February 2024) – A timely reminder of the caution that should be taken in relation to a request for reasonable adjustments due to disability. In this ET decision a sum of £16,376.82 was awarded to the Claimant for failures including not making a reasonable adjustment to allow him to work from home.
The two cases above draw a stark contrast to the varying and often complex competing arguments for requests to work exclusively from home, following an employer’s decision to encourage a return to the office.
It would be too simplistic to suggest that requests made under the Equality Act 2010 i.e. for reasonable adjustments, will always be stronger than requests made under the Employment Rights Act 1996 i.e. for flexible working. The reality is that every case will centre around the particular facts and circumstances and what was known to the employer at the time of any request.
Taking advice, understanding risk, and making a reasoned decision is therefore encouraged.
If you would like to discuss organisational change in your workplace, or how to manage a return to the office, then please contact a member of our Specialist Employment Law Team.
This update contains general information only and should not be construed as providing legal or other professional advice.
Robert Lindsay Dorrian, Solicitor: rld@bto.co.uk / 0131 322 3662 / Connect with Robert on LinkedIn
