Can employers insist employees return to the office?

It’s a question employers are asking as we move out of lockdown.

Although the official guidelines from the government is for employees to continue to work from home at the moment where and when they are able to do so, employers are starting to think about requiring employees to return to the office.

The question is can they?

The definitive answer is that we don’t know, and we probably won’t know until we get authoritative case law which may be a year or so away.

So, for now, I think it depends on each circumstance; but probably not.

Let me explain why I say this by addressing three important points of consideration.

1. What does their contract say?

And in particular what was agreed about home working being a temporary change to an employee’s place of work at the time this practice started? If nothing was formally agreed then the employee may be able to argue that, by way of “custom and practice” their place of work has now changed.

2. Health considerations

It may be that for physical reasons or for reasons associated with mental health the employee is unable to return to their previous place of work. To “force them” to return may result in a complaint of disability discrimination being made.

3. Flexible working

Employees with more than 26 weeks service have a legal right to request flexible working which could include working from home. Employers must have a compelling business reason for rejecting this request. This will be particularly difficult if the employee has been (successfully) working from home during the pandemic.

For me, the key question for employers to ask themselves is “why?” Why do we require employees to work from the office when (presumably) working from home has worked satisfactorily for the past year?

My advice would be to consult and engage with your employees with the objective of reaching an agreement that is acceptable to you both.

Article: Colin Lock, ThreeR Consulting