Claire Brook: Can employers require employees to return to the workplace?

return to the workplaceOver the past few months, various businesses have shifted their stance on flexible working to require employees to return to the workplace. But, following four years of homeworking for many triggered by the Covid-19 lockdown, what are the types of things employers must consider when enacting changes like this?

Employees should check the employee’s place of work stated in their employment contract. If it is their premises, they will be in a stronger position to require a return as a reasonable management instruction. Similarly, if there is a mobility clause, then this may allow reasonable changes to be made to the employee’s place of work.

However, outdated contracts will necessitate risk assessment to determine whether any communications have varied the contract terms, and whether custom and practice has established a new implied contractual right to remote work. Where an employee has a homeworking contract, enforcing a change would constitute a breach of contract in the absence of agreement and could give rise to other claims.

Employers must be mindful of their obligations under the Equality Act 2010. Requiring a return to the workplace could pose discrimination risks, including sex or disability discrimination. For instance, if the requirement disproportionately affects certain groups without objective justification, it may lead to legal challenges.

Dismissing an employee with qualifying service for refusing to return to the workplace may, if mishandled, give rise to an unfair dismissal claim. A qualifying employee could resign and claim constructive unfair dismissal if they perceive the requirement is a repudiatory breach of contract.

All employees can make a statutory flexible-working request from 6 April. Employers are obliged to deal with requests reasonably and consult with employees. A request can only be rejected for one of eight business reasons.

Employers should engage with employees who have relocated, where their contract does not prohibit this, to explore mutually agreeable solutions. They should seek advice for complex situations, such as international relocations that trigger additional considerations such as data security, hours of work availability and tax.

While accommodating pets in the workplace can enhance morale, legal protections are limited where a pet impacts on an individual’s ability to perform their contract, save for assistance animals treated as a reasonable adjustment.

Finally, in cases of resistance to return to the workplace, employers should follow fair procedures and seek advice. Each individual situation warrants careful consideration and a nuanced, risk-assessed approach to mitigate potential legal risks and ensure a smooth transition.

Claire Brook is an employment law partner at Aaron and Partners