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What do I do about...returning employees to the workplace?

View profile for Chloe Pereira
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Considering the alternatives to redundancy

With restrictions easing bit by bit over the coming months, there are plenty of employers who will be looking to get their people back to the workplace as soon as they can. But many of us have got used to working from home and for some, it’s now the preferred option. We take a look at some of the questions employers will be facing on this issue.

Do employees have to be allowed to work from home?

Currently, yes – if it is possible for someone to do their job from home then the employer must take all possible steps to facilitate that.

Under current government restrictions, employers must take all possible steps to enable employees to work from home – this includes providing appropriate equipment. Individuals should only go to work where they cannot work from home, the workplace is open, and its safe to attend (i.e. appropriate covid measures are in place). The covid roadmap, published on 22 February, confirmed that this will remain the case until at least 21 June 2021.

What about when the restrictions lift?

In most cases the contract of employment will determine the rights and obligations regarding place of work. For many, it will be clear that the place of work is the employer’s site, and the arrangement to work from home has been a temporary one enacted in response to the pandemic and, for the majority of the time, a legal requirement. Strictly speaking, many employees will be contractually obliged to return to their normal place of work once covid restrictions lift.

How quickly can we require employees to return to the workplace?

For some individuals a return to the workplace will be a major adjustment. Many of us will have been working at home for up to around 16 months, and the knock on effect of returning to the workplace may be significant. It might include a spike in travel costs, loss of personal time, issues with pet and childcare, clashes with health and wellbeing activities – the list goes on.

This is unique territory, and it would be best to be reasonable – communicate with employees, give as much notice as possible and take into account any personal challenges individuals may have. Some employees may need a little longer than others to make necessary arrangements. 

Although the contractual obligation may be to return to the workplace, employers must be careful not to undermine the implied duty of trust and confidence. For those with at least 2 years’ service, unreasonable exercise of contractual powers could potentially lead to resignations and claims for constructive dismissal.

Employers should also be mindful of those with protected characteristics, and how a sudden return to work may indirectly negatively impact certain groups of people. For example, women with childcare issues.

Can employees request to continue working from home permanently?

Any employee with at least 26 weeks continuous service can make one statutory request every 12 months to work flexibly, for any reason. An employee can make a flexible working request which would change the hours they work, the times they work and/or their place of work – this includes a request to work from home (either all or part of the time).

Assuming the employee is eligible, and makes the request in the correct way, the employer may only reject the request for one of 8 specific reasons:

  1. The burden of additional costs
  2. Detrimental effect on ability to meet customer demand
  3. Inability to reorganise work among existing staff
  4. Inability to recruit additional staff
  5. Detrimental impact on quality
  6. Detrimental impact on performance
  7. Insufficiency of work during the periods the employee proposes to work
  8. Planned structural changes

The employer does have fairly wide discretion – the test of refusal is subjective so as long as the decision is based on correct facts, if the employer considers one of the above reasons applies that will be sufficient.

However, in addition to the flexible working statutory scheme employees remain protected by discrimination laws, and for those with 2 years’ service there is the potential risk for constructive dismissal claims. Where an employee has been demonstrably working successfully from home for several months, it may be challenging for an employer to reject a request to work from home permanently and avoid the risk of claims. 

Each request to work from home should be handled carefully, on its own facts. When considering its decision the employer should take into account:

  • The employee’s reasons for wanting to work from home
  • Whether the request is linked to protected characteristics
  • Whether the employer has experienced any challenges with the employee working from home, and what evidence of that there is
  • How any other employee requests have been dealt with – consistency is important
  • If the request can’t be granted in full, is there a compromise which might work for both parties?

If you need further advice on returning to work call us now for a friendly chat about your needs.