Can staff now be forced back to the office?
Headlines have been blowing up this week with several big businesses making policy changes to force its workforce back into the office. A topic that often results in a heated debate.
But what are the rights around flexible working?
On Monday, a petition demanding that ad giant WPP revokes its new office policy attracted over 10,000 signatures in just four days, after City AM revealed it would be forcing staff to come in four days a week.
While last week it was announced that around 4,000 members of the Public and Commercial Services Union (PCS) were set to take industrial action after staff were ordered back to the office for three days a week.
Following the implications of flexible working as a result of the covid times, a lot of people have set their lives up around a flexible system.
Now, with the push from businesses to bring people back into the office, City AM takes a look at the law.
Can employers force employees back to the office?
This all comes down to an employee’s contract.
As Tania Goodman, partner at law firm Collyer Bristow explained, “an employment contract must set out the core working hours and sometimes specifies agile or hybrid working arrangements.”
Garvey Hanchard, partner at Bloomsbury Square Employment Law stated that if the contracts “specifies that the normal place of work is the office, then in most circumstances the employer can insist upon an employee returning to that office”.
From the employers side, Stephen Ratcliffe, partner at Baker McKenzie highlighted that they have to consider the reasons for any employee refusals reasonably.
He stated that “with an eye to potential discrimination arguments, particularly where issues such as health reasons, childcare or care of a dependent elderly relative are raised.”
“However, that doesn’t prevent employers instructing the whole workforce to return,” he added.
Can employees challenge this change?
Last April the right to request flexible working became a ‘day one’ right, replacing the previous requirement for employees to have at least 26 weeks’ service under their belt before asking.
The law was not the right to have flexible working, but the right to request it.
However, as Hanchard detailed that as a result of covid, many employers introduced working from home policies, rather than changing the place of work in employment contracts.
“Typically, home working policies are ‘non-contractual’ meaning that they are outside the employment contract and not legally binding, and can usually be changed by the employer in accordance with the needs of the business,” he explained.
He added that “if a business allows employees to challenge proposed changes to company policies it would normally be because the employer wants to maintain a positive relationship with employees rather than because the employees had a right to challenge a change.”
Can employees be penalised for not returning to the office?
Goodman stated that an employee would be penalised if they don’t comply with the policies.
“If they do not have a contractual right to insist on remote working then their refusal could constitute misconduct with consequential disciplinary sanctions, including dismissal,” she added.
Ratcliffe added “subject to the qualification that a small category of employees may have unique circumstances which would expose employers to claims if they did so.”
While as Libby Payne, partner at Withers added, in addition to the law, an employee working from home when a business is office-based “may find that they are missing out on opportunities for development and progression, even where employers try to counteract this proximity bias.”
Are there any proposals in the Employment Bill focused on flexible working?
The Employment Rights Bill has been keeping every employment lawyer busy since it was fully revealed by the new Government last October.
From protection against unfair dismissal to ‘day one’ rights, the Bill is predicted to cost British businesses around £5bn in additional costs. However, is there any focus on flexible working rights?
Payne explained that the proposed changes include “any refusal to grant a request must not just be for one of the eight statutory reasons, but it must also be ‘reasonable’ to refuse the request.”
“Employers would also be required to explain why the decision is reasonable,” she added.
While Ratcliffe added that the Bill proposes “a new code of practice on the ‘right to disconnect’, inspired by similar models in Belgium and Ireland, which is said to be intended to prevent remote working turning homes into 24/7 offices.”
However, as City AM previously covered, with all the eyes on employment rights, the Employment Tribunal will see the knock on from this overhaul.
Despite the headline catching changes, it was reported that the Tribunal is already dealing with a backlog following covid.