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Potential legal issues of making staff return to the office?

The Covid pandemic changed global working habits with more people now working from home than ever before.

According to the Office of National Statistics, between October to December 2019 and January to March 2022, homeworking in the UK more than doubled from 4.7 million to 9.9 million people.

Despite the end of UK government guidance to work from home in February 2022, more than 8 in 10 workers who had to work from home during the coronavirus pandemic said they planned to hybrid work both from home and in the workplace . Of those workers surveyed, 42% were planning to work “most working hours from home, and sometimes from their usual place of work”.

As the UK moved out of lockdown, employers took diverse approaches to their working practices, from fully remote working to a full return to the office or a hybrid approach requiring employees to be in the office for two or three days a week and working from home for the rest of the time.

However, we are now seeing many employers reassess their approach to home working with a cultural shift back to more traditional working practices of office-based work primarily to maintain culture and encourage collaborative working.

Employers are entitled to ask employees to return to work to their normal place of work as a “reasonable management request” if the original employment contract specified that the employee would be office-based, and no longer-term change was agreed.

Unfortunately, if you did not set clear parameters about expectations and contractual obligations it may be difficult to force an employee to return to the office by relying on a contractual term.

There may be legal issues if working from home or hybrid working was contractually agreed with employees. It may also have become an implied term of their employment. Employers will then need to consider whether contracts and/or policies need changing under a formal process.

A request for employees to return to their place of work may lead to an increase in flexible working requests under the Employment Relations (Flexible Working) Act, new regulations in force from 6 April 2024.

The new regulations include provisions for hybrid working as a definition of flexible working, and allow employees to make a request from day one and up to two requests per year. Employers are required to consider all requests in an open-minded conversation with the employee about what flexible working arrangements might be possible.

An employer does not have to necessarily agree to the request (the business reasons for refusal remain the same under the new regulations).

However, refusing flexible working requests for hybrid or home working has risks for the employer and may give rise to grievances, claims in constructive unfair dismissal or a breach of flexible working legislation. It is important that employers treat similar requests in the same way to avoid complaints of unfairness and discrimination claims where an employee has a protected characteristic. Employers should therefore keep a record of all flexible working requests, responses and reasons given to assist in decision making.

It will be interesting to see if there will be an increased demand for employees to return to the office as predicted and the impact this has on flexible working requests.

If you are an employer and considering a request for employees to return to the office, you should be aware of the potential issues and risks that you may be faced with.

We can assist you with any potential legal issues and mitigating any risks that your request may give rise to.

If you need any assistance, please do not hesitate to contact us on our Head Office number 01983 897003.

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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.

The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.

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