This is a question we are frequently asked. Following the pandemic, many employees want to continue to work from home – or at least not return to the office full-time – citing reasons such as time-consuming commutes and the cost of wraparound childcare. On the other hand, many employers believe that office-based working is better for productivity, teamwork and morale.
The Issues
Cancelling all home working without consultation or analysis of the workforce is problematic. There are a number of factors employers should consider: –
- Terms and conditions of employment: what do these say about place of work? Is
there a ‘mobility’ clause allowing variation of the workplace (note that any
exercise of rights under this type of clause must be reasonable)? Has the
contract been amended by custom and practice? If employees have been
allowed to work from home, was this specified to be temporary? - Flexible working requests. If flexible working requests have been agreed in the
past, the agreed terms will now form part of those employees’ contracts of
employment. - Does the workforce include people who might find it harder to comply with the
changes (eg those with disabilities or with childcare responsibilities)? - Are there any compromises that can be offered (e.g. hybrid working, shorter days,
attendance required at key meetings)?
Potential Claims
There are a number of claims which might be brought against an employer if it imposes a change to office-based work on its staff without agreement. These include:
- Constructive dismissal claims, including for breach of the express terms of the
contract and for the implied term of trust and confidence - Unfair dismissal claims
- Failure to follow the Code of practice on dismissal and re-engagement – this
might result in an compensation of up to 25% for successful claims - Disability discrimination claims if the workforce includes those with disabilities
who are less able to comply with the changes. Note that disabilities can include
those with long term mental impairments - Indirect sex discrimination claims from those who have childcare
responsibilities (this can potentially now include men and women) - Flexible working claims if employees make flexible working requests which are
not handled correctly - Failure to inform and consult in accordance with collective consultation
legislation where more than 20 dismissals are proposed.
Suggested Approach
Consultation with the workforce and open-minded consideration of suggestions and individual circumstances is key to reducing the risk of claims and maintaining morale generally. If an employer considers that changes might lead to dismissals, the Code should be followed (but note that the new Employment Rights Bill will significantly restrict employers’ ability to impose changes by ‘fire and rehire’). For now, some suggested steps might be:
- Where productivity is seen to be an issue, provide detailed information to all staff
about concerns and alert them that monitoring of productivity will be taking
place over a defined period (and how this will be done) - Share any outcomes with staff and outline any proposals
- Consult with the staff about the proposals using trade union or employee
representatives; give as much information about the proposals as possible
Listen carefully to any objections and suggestions and consider individual
circumstances - If the changes are still needed but the employees or their representatives do not
agree, re-examine proposals (including whether these might have a greater
impact on some employees and whether there are other reasonable means of
achieving objectives) - If the changes are agreed, set them out in writing and give sufficient notice,
bearing in mind that some employees might have made significant changes in
their personal lives such as moving house - Imposition of new terms without agreement should only be a last resort and may
give rise to claims, although an employer who carries out a thorough and
meaningful consultation exercise and reasonably considers all alternatives
might mitigate their loss - Where changes are imposed, notice should be given of the greater of the
employees’ contractual notice period or the statutory minimum notice period
and consideration should be given for a longer period to allow employees to
adapt - Consider offering practical support e.g. relocation assistance
- Re-engage the employees on their new terms as soon as reasonably practicable
- Ask for feedback about the changes once they have been implemented and as
the employees adapt.
All situations are different and may require tailored advice. Please do get in touch if we can help.