Amazon recently announced that it wants all staff to return to the workplace and no longer work from home. Granted, those in the warehouses do not work from home, but there are a large number of keyboard workers who do. How easy is it for employers to suddenly change the work location?
First, we need to separate the USA from the UK. We do not have the fire at will context that is prevalent in many states. In the UK, we look at the contract, the protective legislation and case law that governs how matters should be handled, and this demands a co-operative environment.
The contractual provisions of an individual employee’s contract of employment are key. Is there genuine flexibility over work location to be exercised by the employee? If there is, then a return to the office by dictat is not going to work, because an employer will be seeking to change the terms of the contract.
Agreement between the parties will be necessary. If agreement is not possible because the employee likes things the way they are, the employer will have to assess how far it is willing to push things. There is the possibility over buying co-operation but, for many, working from home is proving very popular.
So, if the employee cannot be bought off, can they be forced back to the daily commute into work? Any employer can seek to change a contract unilaterally, but it is a dangerous game. An employee with the right contractual provisions to back their stance can refuse to change and one is left with a stand-off. Dismissal or resignation can be the result, but that leads so easily to litigation, which can be costly. The interesting cases will be where the contractual provisions are not laid out in stark black and white.
Flexible arrangements may have come about during the Covid-19 pandemic with a reliance on goodwill. However, custom and practice then join the party. How much has been set in stone by a continuous pattern of working even though nothing is in writing? Each case will have to be examined on its own merits.
Again, better to consult on the change rather than force it through. And then the party with the most bargaining power could very well win. In short, simple pronouncements should not be taken as read.
Martin Williams is head of employment and partner at Mayo Wynne Baxter
