During the COVID-19 pandemic, many employees began homeworking or hybrid working (working partly in the office and partly at home). This worked well for many employers and employees alike. After the pandemic, the trend towards homeworking and hybrid working continued but more recently there has been a shift towards employers asking its employees to spend more time in the office. If this has happened to you, you may wish to know whether your employer can compel you to return to the office if you do not want to return.
What Is The Contractual Position?
The starting point is that there is no right for you to work from home unless it is part of your employment contract.
Homeworking and hybrid working was put in place by many employers on an informal basis as a result of the COVID-19 pandemic, without any formal contractual changes. Your written contract, or your written statement of particulars of employment, may still provide that your place of work is the office and may not include a contractual right to work from home. Even where there is no express contractual term confirming that you are a homeworker or hybrid worker this may have become an implied contractual term. This will be a question of fact based on your individual circumstances.
If there has been a contractual change which permits you to work from home all of the time or on certain days a week, your employer cannot simply compel you to now work in the office permanently or on different days.
If you have a hybrid working arrangement, this may allow you to work so many days at home and so many days in the office but be flexible about which days these are. If your employer wants to make a change to your days in the office, they will need to consider your contract and the attendance requirements of any hybrid working policy that they have put in place. It will be for your employer to determine the appropriate level of attendance required which may vary between different teams and the needs of the business.
Is There Anything I Can Do To Continue With My Current Working Arrangements?
If you have no contractual right to continue homeworking or hybrid working you can submit a statutory flexible working request to try to maintain your current homeworking arrangement.
Your employer can only refuse flexible working requests for one or more prescribed reasons. These are:
- the burden of additional costs;
- detrimental effect on ability to meet customer demand;
- inability to reorganise work among existing staff;
- inability to recruit additional staff;
- detrimental impact on quality;
- detrimental impact on performance;
- insufficiency of work during the periods you propose to work;
- planned structural changes.
Employers who reject flexible working requests to work from home often rely on detrimental impact on quality or performance or detrimental effect on ability to meet customer demand. You should be prepared, as far as possible, to deal with these points in your request.
Your employer will also need to be mindful not to act in a discriminatory way. If your employer revokes its informal home working arrangement and, for example, you have a disability which means you find it difficult to travel to the office every day, this may be indirectly discriminatory if your employer does not have a good business reason for their decision.
What Steps Can My Employer Take If I Refuse To Return To The Office?
In the first instance, your employer might try to encourage office attendance rather than to mandate it perhaps by offering incentives or making attendance a metric on which performance is judged or remuneration is awarded.
Your employer should ensure that any requirements are applied fairly and consistently and communicate the consequences of you failing to comply with the office attendance requirements.
If you refuse to comply with your employer’s office attendance requirements and you have no contractual right to work from home, your employer may deal with this refusal as a disciplinary matter. This could ultimately lead to your dismissal. You should clearly identify your reasons for non-compliance during the disciplinary process (even if you have already clearly set out your reasons as part of a flexible working request). A compromise position may be found.
You may have an unfair dismissal claim if your employment is terminated for failure to comply with your employer’s office attendance requirements and your employer has failed to follow a fair, transparent and consistent process. It may be hard for your employer to justify that your dismissal was fair if you have been working from home satisfactorily and there is insufficient justification for the return to office working. A dismissal could also be discriminatory.
Lincs Law Employment Solicitors Can Help You
If you have any concerns about a return to office working and would like advice on your own situation, please contact us for a free enquiry on 01522 440512 or via the web chat or contact form on our website at www.lincslaw.co.uk.
Kathryn Bolton
Associate
Specialist Employment Solicitor
Lincs Law Employment Solicitors
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