The tension between remote working and office attendance has resurfaced with the announcement made by Financial Conduct Authority (FCA) employees, who are threatening industrial action if they are required in the office for more than the current rule of 40% of working days in each month.
An employee’s normal working hours and place of work must be set out in their written statement of terms and conditions. But during the Covid-19 pandemic, contractual terms were often varied by the requirement to work from home where possible. Many employees began to see the benefits of remote working, particularly when it came to saving costs of commuting, and using their working and travelling time more flexibly to fit in with family responsibilities.
Many employers are now trying to measure the benefits of remote working against the benefits of working together in their office space, and there has been a rise in businesses asking their employees to return to office-based work on a full-time or near full-time basis. Whether contractual terms were permanently or temporarily varied during Covid will be a question of fact in each case, but even in the case of temporary variations, where an employer clearly has the contractual right to revert to the original working arrangements, there are important factors to be considered.
First, the employer must always respect the implied duty of mutual trust and confidence, which is likely to require at least some prior notice and information to be provided to employees before any change is implemented. The employer must also be ready to deal with flexible-working requests from employees, and this legal right has expanded significantly in the last 18 months. The risks of discrimination must be considered if the requirement to work in the office places any employee at a disadvantage on the grounds of a particular protected characteristic, for example if they care for a disabled relative. What about the impact on staff morale and retention? And in unionised workforces, is there the risk of industrial action such as that threatened by Unite on behalf of members?
Ultimately, if an employee refuses an employer’s reasonable request to return to more office-based working where their employment contract provides for it, the employer may have no other choice but to take disciplinary action, which, in turn, may escalate into a legal dispute with that employee. In large, unionised workforces with mass objections, it is easy to see such disputes ending up in lengthy and costly employment tribunal litigation, at a time when that court service is already creaking at the seams and under-resourced for the widescale changes proposed in the Employment Rights Bill.
Stephen Ravenscroft is an employment partner at Wedlake Bell
